Amicus Opposition to Mot. to Dec. KU Served

8/12/2019 Amicus Opposition to Mot. to Dec. KU Served

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

GREENBELT DIVISION

BRETT KIMBERLIN,

Plaintiff

v. Case No. RWT 13 CV2580

ANONYMOUS BLOGGER

KIMBERLIN UNMASKED,

Defendant

AMICUSOPPOSITIONOFAARONJ.WALKER,ESQ.TOPLAINTIFFSMOTIONTOFIND

KIMBERLINUNMASKEDHASBEENSERVED

COMES NOW Aaron J. Walker, Esq., as an Amicus Curiae and offers this opposition to

Plaintiffs Verified Motion to Find That Defendant KimberlinUnmasked Has Been Served Under

Federal Rule Of Civil Procedure 4(e)(1) and Maryland Rule of Civil Procdure [sic] 2-121 (Motion to

Declare KU Served)1and states the following:

1. On or about September 5, 2013, the Plaintiff instituted the instant suit with a ComplaintECF No. 1. The Plaintiff knew on that date that he was suing an anonymous writer or writers on the

internet that he could not yet identify. Compl. 2. In the same document, he admitted he did not know

where the Defendant(s) resided. Compl. 2 ([b]ecause Defendant is anonymous, he may or may no

reside in the [sic] District.

1There is presently no ECF number for this motion because it was mistakenly filed in the wrong case

file.


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2. On or about October 15, 2013, the Plaintiff filed a Motion for Extension of Time toServe Defendant. ECF No. 4. That motion was based on the fact that the Plaintiff still didnt know

who the Defendant(s) was (were), and, therefore, needed time to identify him, her or them.

3. On or about October 17, 2013, this court granted the Plaintiff an extension until February14, 2014, to account for that difficulty.

4. That deadline passed more than a week ago.5. In order to avoid the consequences of a failure to serve the Defendant or Defendants

under Fed. R. Civ. P. 4(m) and in an obvious attempt to obtain a default judgment, the Plaintiff has filed

the instant motion.

I.

THE PLAINTIFF HAS DEMONSTRATED BAD FAITH BY SUBMITTING AN APPARENTLY

FORGED PROOF OF SERVICE OF PROCESS TO THIS COURT, JUSTIFYING DISMISSAL

WITH PREJUDICE

6. In his Declaration attached as Exhibit K to his Motion to Declare KU Served, the Plaintiffnoticeably does not swear that other Exhibits are true and correct copies of the originals. This is because

apparently one of them is nota true and correct copy. Instead, it has been altered.

A. The Plaintiff Has Presented an Apparently Forged Document Purporting to RepresentService on Lynn Thomas.

7. In paragraph 5 of his Motion to Declare KU Served the Plaintiff writes: Plaintiff hassent the Complaint to Lynn Thomas at her Illinois address but it has been returned. Exhibit D.

8. Plaintiffs Exhibit D purports to be a copy of the package by which service wasattempted. It appears to have been forged. It shows what appears to be a certified mail green card

with a checkmark indicating that it was sent restricted delivery as follows:


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As one can also see, it is given a tracking number of 7013 1090 0001 2438 6922.

9. However, the receipt the Plaintiff submitted to this same court in the case of Kimberlin vNational Bloggers Club, et. al.2does not indicate that restricted delivery service was actually paid for

This is copy of that item on the receipt the Plaintiff submitted in that court:3

As this court can see, it has the exact same tracking number. And yet this receipt plainly indicates that

restricted delivery service was not actually paid for in the $11.25 worth of postage spent. If he had

2Case number PWG 13-3059.

3Although this court can examine this document for itself by obtaining the case file, and examining the

Status Report Re Service of Complaint, ECF No. 33, for this courts convenience, Amicus has

provided a true and correct copy of the document as Exhibit A.


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actually checked the box for restricted delivery before sending it, upon information and belief, the post

office would not have attempted service but instead would have returned it to Mr. Kimberlin with

postage due. In short, the Plaintiff has presented what appears to be an impossible document: a

document purporting to represent an attempt to deliver certified mail, with restricted delivery, without

actually paying for that service. The most logical conclusion is that the Plaintiff checked off the

restricted delivery box afterthe mail was returned.

B. The Plaintiff Has A History of Forging and Altering Documents.10. As difficult as this might seem at first to believe that the Plaintiff would submit altered

documents to this court, the instant Plaintiff has a track record of engaging in precisely the same kind of

behavior. First, the Plaintiff is a convicted document forger. Specifically in U.S. v. Kimberlin, the court

described how he was arrested at a printing establishment with forged documents that included the

Presidential Seal:

[FBI Agent] Lucas had been called to a printing establishment. He observed defendant

[Kimberlin] wearing clothing with badges and insignia. The insignia was identical to thatof the Security Police of the Defense Department. Defendant had in hand a facsimile ofthe Presidential Seal and other documents; one or more of which he attempted to chewup. He had been at the establishment the day before to have copies of the documentsprinted. He had been wearing the same clothing. At the printers instructions, he hadreturned to give final approval of the layout.

805 F.2d 210, 228 (7thCir. 1986).

11. Moreover in two other cases, the Plaintiff has been caught forging documents that relateto service of process over three more times as follows.


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12. The most directly parallel instance involves a third case the Plaintiff has filed againstKimberlin Unmasked (and others), Kimberlin v. Walker, et al.4 On November 26, 2013, the same

Plaintiff filed a Motion To Find Defendant Ali Akbar Served Under Rule 2-121(B) (Docket Entry

(DE) 38) that was substantially similar to the instant motion in this case. One of the exhibits to that

motion included a certified mail green card with no check mark in the Restricted Delivery box.5

Later, in the same case, he filed a Motion For Sanctions Against Attorney Patrick Ostronic for Filing a

Motion for Defendant, Ali Akbar Presenting False Information to the Court (DE 60). That motion

included what purported to be a copy of the same green card, but suddenly a checkmark appeared next

in the Restricted Delivery box.6 In a January 13, 2014 hearing on his motion to declare Akbar served

the same Plaintiff insisted that the later green card copy was a true and correct copy of the original (even

though it didnt match a previous copy of the same card), but Judge Burrell found that evidence had

been doctored and denied the motion.

13. The last two examples of apparent forgery appear in the simultaneous federal case ofKimberlin v. National Bloggers Club et al.mentioned supraparagraph 9, the same Plaintiff apparently

forging another image of a mailed package and even forging a summons upon a non-party in an attempt

to trick them into believing that they were a party to this suit.

4

(Md. Mont. Co. Cir. Ct. 2013) case number 380966V. The case involves five (or more) defendantsincluding Ali Akbar, Robert Stacy McCain, John Hoge, Kimberlin Unmasked, and Mr. Walker.5A copy of that exhibit is attached as Exhibit B to this opposition. Amicusintends to file a supplement

to this pleading that includes certified copies of the exhibit from the state court file.6A copy of that exhibit is attached as Exhibit C to this opposition. Amicusintends to file a supplement

to this pleading that includes certified copies of the exhibit from the state court file.


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14. Specifically, the Plaintiff presented what purported to be a refused attempt at service thathad grossly insufficient postage. The Plaintiff was required to submit a status report on his attempts to

serve the myriad defendants in that case. In an attempt to comply with that order, the Plaintiff submitted

a Status Report Re Service of Complaint (Status Rpt., ECF No. 33). On page 3 of Exhibit E to

Status Rpt. 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 $1.25.7 Upon information and belief, that is insufficien

postage.8 Once again, upon information and belief, a package that lacks sufficient postage is

immediately sent to the return address on the envelope with the marking postage due. The USPS does

not attempt delivery at its destination without sufficient postage.

15. But the most egregious example is the Plaintiffs attempt in the same case (Kimberlin vNational Bloggers Club et. al) to trick a non-party, a corporation called Twitchy LLC, into believing

that they were a party to the case. Specifically in their Memorandum in Support of Defendant Michelle

Malkin and Non-Party Twitchys Motion to Dismiss First Amended Complaint, and For Attorney Fees

and Costs (Malkin/Twitchy Memorandum, ECF No. 41), counsel for Twitchy LLC presents credible

evidence that the Plaintiff engaged in a scheme to trick Twitchy into believing it is a party to that case

First, when the Plaintiff attempted to serve Twitchy, the Plaintiff altered the caption of the documents so

that Twitchy was listed as one of the Defendants when it not in the copy filed with the court. Further

because the clerk of the court refused to issue a summons to Twitchy LLC, he decided to forge one for

7Although this court can examine this document for itself by obtaining the case file, for this courts

convenience,Amicushas provided a true and correct copy of the document as Exhibit D.8See Exhibit E.


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himself. See Malkin/Twitchy Memorandum, pp. 2-5, 40-43 and the exhibits thereto. In a letter order

issued on February 21, 2014, Judge Grimm ordered that

[w]ithin twenty-one days of this Letter Order, Plaintiff SHALL SHOW CAUSE as towhy sanctions or other appropriate relief should not be assessed as a result of hisalterations of summonses issued by the Clerk of this Court[.]

That filing will be due on March 14, 2014.

16. The Plaintiff has had these crude forgeries pointed out to him repeatedly. He has neverattempted to demonstrate that they were true and correct copies or to excuse his attempt to forge

documents relating to service of process. He has never even apologized to these courts for his

deception.

C. The Plaintiffs Apparent Forgery of Documents Warrants Dismissal of the Present Action.17. A Federal court has discretion to dismiss an action for misconduct that abuses the judicial

process or tampers with the administration of justice. Chambers v. NASCO, Inc., 501 U.S. 32 (1991)

Dismissal with prejudice under Fed. R. Civ. P. 41(b) for violating the court rules or a court order also is

within the courts discretion.Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), citing National Hockey

League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976).

18. A Federal District Court possesses inherent powers that are necessary to the exercise ofall others.Johnese v. Jani-King, Inc., 2008 U.S. Dist. LEXIS 16435, **4-5 (N.D. Tex. March 3, 2008)

citing Chambers, 501 U.S. at 43, and United States v. Hudson, 11 U.S. 32, 34, 3 L. Ed. 259 (1812)

Though a court should exercise those powers with restraint, they extend to dismissing a case with

prejudice for a litigants misconduct if the court considers lesser sanctions and determines they would

not suffice. Id. at *5, citing Shepherd v. American Broadcasting Cos., 62 F.3d 1469, 1479 (D.C. Cir

1995) (collecting cases). Rule 41(b) also provides a basis for dismissing with prejudice, where a


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plaintiff engages in misconduct constituting a violation of the court rules or a court order. C.B.H

Resources v. Mars Forging Co., 98 F.R.D. 564, 569 (W.D. Pa. 1983).

19. Fraud on the court has been described as a scheme to interfere with the judiciamachinery performing the task of impartial adjudication, as by preventing the opposing party from fairly

presenting his case or defense. Von Nichols v. Klein Tools, Inc., 949 F.2d 1047, 1048 (8th Cir. 1991)

(citations omitted). A finding of fraud on the court is justified only by the most egregious misconduct

directed to the court itself, such as... fabrication of evidence by counsel, and must be supported by clear,

unequivocal and convincing evidence. Id. (citations omitted). Mr. Kimberlins brazen misconduct in

attempting to declare Kimberlin Unmasked served based on an apparently forged document constitutes

just such a fraud. If it had not been exposed, it might have resulted in a finding that Kimberlin

Unmasked has defaulted and thus that fraud would have prevent[ed] the opposing party from fairly

presenting his case or defense. Id.

20. In C.B.H. Resources, thatplaintiff secured a witnesss presence for deposition by havingits counsel present the witness with a document plaintiff claimed was a valid subpoena, but which was

not. Plaintiffs abuse of the courts process under Fed. R. Civ. P. 45 was a sufficiently egregious rule

violation to warrant involuntary dismissal under Rule 41(b). 98 F.R.D. at 568-569. So too here, the

Plaintiffs actions violate numerous provisions of Fed. R. Civ. P. 4 (Summons), 5 (Serving and Filing

Pleadings and Other Papers), 11 (Signing Pleadings and Representations to the Court), and 15

(Amended and Supplemental Pleadings) to name just a few. Further, his pro se status is no excuse. One

doesnt need to go to law school and be admitted into the bar to know not to take an official document

alter it, and then try to pass it off as something other than what it is. That is something every norma

person learns as a schoolchild.


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21. Tampering with the administration of justice... involves far more than an injury to asingle litigant. It is a wrong against the institutions set up to protect and safeguard the public.Johnese

at *5, citing Chambers, 501 U.S. at 44 and, inter alia, Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118

(1st Cir. 1989) (dismissing case in which plaintiff attached fabricated document to complaint; [i]t

strikes us as elementary that a federal district court possesses the inherent powers to deny the courts

processes to one who defiles the judicial system by committing a fraud on the court). AndAoudenoted

that:

Courts cannot lack the power to defend their integrity against unscrupulous marauders; ifthat were so, it would place at risk the very fundament of the judicial system. As JusticeBlack wrote in a case involving a not-dissimilar fraud:

Tampering with the administration of justice in the manner indisputablyshown here involves far more than an injury to a single litigant. It is awrong against the institutions set up to protect and safeguard the public,institutions in which fraud cannot complacently be tolerated consistentlywith the good order of society....The public welfare demands that theagencies of public justice be not so impotent that they must always bemute and helpless victims of deception and fraud.

All in all, we find it surpassingly difficult to conceive of a more appropriate use of acourts inherent power than to protect the sanctity of the judicial process -- to combatthose who would dare to practice unmitigated fraud upon the court itself.

Aoude, 892 F.2d at 1119 (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,

246 (1944)).

22. Such conduct certainly constitutes defil[ing] the judicial system, Id., and the mostegregious misconduct directed to the court itself, Von Nichols, 949 F.2d at 1048, justifying dismissal

under the Courts inherent authority and/or Rule 41(b). Therefore, the Complaint should be dismissed

with prejudice.


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II.

THE PLAINTIFFS MOTION TO DECLARE THE DEFENDANT(S) SERVED SHOULD BE

DENIED ON ITS MERITS

23. There is one fact that is manifest on the face of the Plaintiffs Motion to Declare KUServed and in his Complaint: he doesnt know anything about who he is suing. He doesnt know who

posted the pictures that allegedly violated his alleged copyright.9 He doesnt even know how many

people participated in these alleged copyright violations. Was it one person? Was it two people? Ten

people? A hundred? If the Plaintiff has any evidence establishing even the number of violators, he has

yet to share it with this court.

24. Likewise, since he has no idea who or whom he is suing, he has no idea wherehe/she/they are living. This person or persons could be his next door neighbor. He/she/they could live

in Hawaii. Or this person or persons could be using an internet kiosk in Tokyo. The Plaintiff has no

way of knowing exactly where he/she/they are.

25. This fundamental ignorance undermines every single argument the Plaintiff has presentedfor declaring the Defendant or Defendants served. Because of the fact he doesnt know where the

Defendant or Defendants are located, he doesnt know whether the appropriate rule is Fed. R. Civ. P.

4(e) or (f). He does not knowand cannot knowthat the Defendant or Defendants are evading

service of process. He does not knowand cannot knowthe Defendant(s) last known address or

9This is referred to as the Plaintiffs alleged copyright because the Plaintiff is not even clear who

owns the copyright to which pictures. For instance, in paragraph 7 of the Complaint (ECF No. 1), thePlaintiff states that [a]ll of Plaintiffs music is copyrighted by Plaintiff. All of the videos created from

those songs are copyrighted either by Plaintiff individually or by Justice Through Music, which he

directs. But the Plaintiff is not suing the Defendant for unlawfully copying his music, and he canno

assert the copyright of a corporation, even if he is its director. Therefore the Plaintiff has made i

unclear which, if any, of the copyrighted material is actually owned by him.


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addresses. And he does not knowand cannot knowhow many people have participated in the

alleged violation of his copyrights and whether they are in sufficient communication that notice to one is

equivalent to notice to all of them. Therefore, the motion to declare Kimberlin Unmasked served should

be denied. The Plaintiff simply cannot skip the step of identifying his Defendants.

A. Because the Plaintiff Doesnt Know the Location of the Defendant(s), the Plaintiff CannotApply Md. R. Civ. P. 2-121.

26. The Plaintiff incorrectly asserts in paragraph 1 of his Motion to Declare KU Served thatFederal Rule of Civil Procedure (4)(e)(1) allows service following state law for serving a summons in

an action brought in courts of general jurisdiction in the state where the district court is located or

service is made. From that premise, the Plaintiff argues that Marylands rules regarding service o

process should be followed.

27. However, this rule only applies when serving a person in a judicial district of the UnitedStates. Fed. R. Civ. P. 4(e). By contrast, if that person is presently in a foreign country, the correct

rule is Fed. R. Civ. P. 4(f), which does not allow for service according to Maryland state law.

28. The Plaintiff does not even pretend to know where this person is located. The Plaintiffclaims that discovery in another case shows that [the website] KimberlinUnmasked was created by an

individual using the email [email protected] and that [t]hat email is that of Lynn

Thomas, from Streamwood, Illinois.10

However, even if true, that does not prove that this Lynn

10 The Plaintiff gives this court no indication as to how he knows that the Lynn Thomas allegedly

identified in court documents is the same Lynn Thomas he believes lives in Illinois. This is not a

particularly unique name. A Google search for Lynn Thomas produces over 94 million hits. Why

does the Plaintiff believe that Lynn Thomas is an unknown person in Illinois, rather than the adult

actress who uses the same name, who reportedly lives in Newport News, Virginia? Lynn Thomas


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Thomas actually created the website, let alone the specific images that allegedly violate the Plaintiffs

copyright. For all the Plaintiff knows, Ms. Thomas11

email was hacked by third parties unknown and

used to create this website without her knowledge or approval. Or perhaps she logged into her email at a

public computer and failed to log out, and a third party took advantage of her mistake. At most, this

information (if true) suggests that Ms. Thomas might have information leading to the identity of the

person or persons known as Kimberlin Unmasked. But as it stands, it gives this court no assurance that

Ms. Thomas actually isKimberlin Unmasked.

29. Although he doesnt say it, the Plaintiff apparently does not believe Ms. Thomas isKimberlin Unmasked. This is demonstrated by the fact that in his Motion to Declare KU Served, the

Plaintiff ubiquitously refers to the Defendant as a man. See, e.g. 6 (In fact, hehas even posted the

suit and on November 3 and 4, 2013, heposted paragraphs from the suit) (emphasis added). While

(if taken as true) that does narrow down the list of potential defendants by approximately half of the

worlds population, it also eliminates the half that Ms. Thomas belongs to.

IMDB, available at (http://www.imdb. com/name/nm0859185/) visited February 23, 2014. Or for that

matter, why doesnt he believe this is Dr. Lynn Thomas, who reportedly lives in Upper Marlboro

Maryland? Dr. Lynn A. Thomas, M.D., HEALTHGRADES, (available at http://www.healthgrades.com/

physician/dr-lynn-thomas-37w3v) visited February 23, 2014. Or perhaps even the Dr. Lynn Thomas

who is reportedly a Senior Lecturer in Theology and Religious Studies at the University of Roehampton,

in London, England. Dr. Lynn Thomas, UNIVERSITY OF ROEHAMPTON (available at http://www

roehampton.ac.uk/staff/Lynn-Thomas/) visited February 23, 2014. The purpose of naming those three

individuals is not to suggest they arethe same Lynn Thomas, but to point out that the Plaintiff has notexplained why, out of all the Lynn Thomases in the world that he is certain that thisLynn Thomas is the

one who owns the email that was used by someone (not necessarily her) to create the Kimberlin

Unmasked website and lives in Streamwood, Illinois.11

Amicusrefers to women as Ms. by default, and the use of the term Ms. is not meant to denote the

actual marital status of Ms. Thomas or anyone else.


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30. Not knowing who this person is, he cannot pretend to know wherethat person is, and it iscertainly his burden to prove that this person is located in a judicial district of the United States and

thus subject to Fed. R. Civ. P. 4(e) rather than Rule 4(f), or alternatively he must show he has satisfied

both 4(e) and(f). Nothing that the Plaintiff has filed satisfies that burden, and for that reason alone the

Plaintiffs Motion to Declare KU Served should be denied.

B. Even if Md. R. Civ. P. 2-121(b) Applied, the Plaintiff has not Properly Invoked it.31. Even if we were to pretend that the Plaintiff had proven that Fed. R. Civ. P. 4(e) applied

to these circumstances, allowing the Plaintiff to incorporate the procedures set up by Md. R. Civ. P. 2-

121(b) under Fed. R. Civ. P. 4(e)(1), the Plaintiff hasnt actually followed those procedures. Incredibly

the Plaintiff accurately quotes from Md. R. Civ. P. 2-121(b) but then fails to adhere in even the most

basic way to that rule. Md. Rule 2-121(b) states in relevant part that:

When proof is made by affidavit that a defendant has acted to evade service, the courtmay order that service be made by mailing a copy of the summons, complaint, and allother papers filed with it to the defendant at the defendants last known residence and

delivering a copy of each to a person of suitable age and discretion at the place ofbusiness of the defendant.

32. First, the Plaintiff has not submitted an affidavit, but rather a declaration.33. Second, under Maryland law, the Plaintiff is procedurally barred from submitting such an

affidavit in support of this motion. Under Md. Code. Cts. & Jud. Proc. 9-104, [a] person convicted o

perjury may not testify. The Plaintiff has been convicted of perjury12and on three occasions has been

properly barred from testifying or even offering his own affidavit into evidence in Maryland circuit

12Kimberlin v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992).


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court. If the Plaintiff is going to borrow from Marylands rules regarding service of process, he cannot

pick and choose which Maryland rules will apply.

34. Third, even if we accept the declaration of a convicted perjurer as competent evidencesufficient under Md. R. Civ. P. 2-121(b)and no Maryland state court wouldthe declaration does not

establish that the Defendant or Defendants are actually evading service. The Plaintiff seems to think

that upon being sued that the person or persons known as Kimberlin Unmasked had a duty to

spontaneously reveal their identities and locations to him and that failure to do so is evasion. But Rule

2-121(b) makes it clear that simply passively refusing to help the Plaintiff to serve them is not evasion.

Rather 2-121(b) requires proofthat a defendant has acted to evade service (emphasis added). This

requires commission, not omission.

35. Indeed, there is nothing wrong or nefarious with maintaining ones right to anonymousspeech. The right to speak anonymously is protected by the First Amendment. Watchtower Bible &

Tract Socy v. Village of Stratton, 536 U.S. 150, 166-167 (2002); McIntyre v. Ohio Elections Comm.

514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960). These cases have celebrated the

important role played by anonymous or pseudonymous writings over the course of history, from

Shakespeare and Mark Twain to the authors of the Federalist Papers:

[A]n author is generally free to decide whether or not to disclose his or her true identity.The decision in favor of anonymity may be motivated by fear of economic or officialretaliation, by concern about social ostracism, or merely by a desire to preserve as muchof ones privacy as possible. Whatever the motivation may be, . . . the interest in having

anonymous works enter the marketplace of ideas unquestionably outweighs any publicinterest in requiring disclosure as a condition of entry. Accordingly, an authors decisionto remain anonymous, like other decisions concerning omissions or additions to thecontent of a publication, is an aspect of the freedom of speech protected by the FirstAmendment


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Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulentpractice, but an honorable tradition of advocacy and of dissent.

McIntyre, 514 U.S. at 341-342, 356.

36. In this particular case, any rational person would be reluctant to give up his or her right toanonymous speech. The instant Plaintiff is an infamous terrorist known as the Speedway Bomber. The

Sixth Circuit summed up the worst of his extensive criminal history as follows:

Kimberlin was convicted as the so-called Speedway Bomber, who terrorized the city of

Speedway, Indiana, by detonating a series of explosives in early September 1978. In the

worst incident, Kimberlin placed one of his bombs in a gym bag, and left it in a parking

lot outside Speedway High School. Carl Delong was leaving the high school football

game with his wife when he attempted to pick up the bag and it exploded. The blast tore

off his lower right leg and two fingers, and embedded bomb fragments in his wifes leg.

He was hospitalized for six weeks, during which he was forced to undergo nine

operations to complete the amputation of his leg, reattach two fingers, repair damage to

his inner ear, and remove bomb fragments from his stomach, chest, and arm. In February

1983, he committed suicide.

Kimberlin v. White, 7 F.3d 527, 528-29 (6thCir. 1993).

37. In addition to those crimes for which he was convicted, news reports and even hisauthorized biography maintain that he is the lead suspect in the murder-for-hire of Julia Scyphers.13 The

same reports state that the polices theory of that murder is as follows: that the instant Plaintiff was

having a questionable relationship with a pre-pubescent girl named Jessica Barton and that Mrs

13CITIZEN K:THE DEEPLY WEIRD AMERICAN JOURNEY OF BRETT KIMBERLIN 82et seq.(1996)(CITIZEN

K);RetroIndy: The Speedway Bombings, Part I: For a Week in 1978, the Town of Speedway wasTerrorized by a Serial Bomber, INDIANAPOLIS STAR, (available at http://www.indystar.com/article/

99999999/NEWS06/100919012/) visited December 7, 2013 (RetroIndy I); RetroIndy: The Speedway

Bombings, Part II: Building the Case Against Brett Kimberlin INDIANAPOLIS STAR, (available at

http://www.indystar.com/article/99999999/NEWS06/100919013) visited December 7, 2013 (RetroIndy

II).


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Scyphers, her grandmother, had vocally objected to that relationship.14 Indeed, the same reports have

hypothesized that the instant Plaintiff carried out the Speedway Bombings in an attempt to distract the

police from that murder investigation.15 Still more news reports state that the instant Plaintiff, while in

jail, attempted to contract a murder-for-hire aimed at those who were prosecuting him for the Speedway

Bombings, and even tried to frame someone else for that bombing.16

The point of citing these articles

isnt to prove that any of these claims are necessarily true, but to show why an ordinary critic of the

Plaintiff might reasonably believe they are true and reasonably be afraid of giving that person

his/her/their real name(s) and location(s).

38. Additionally, many of Mr. Kimberlins critics have been SWATted, including AmicusThe term SWATting is relatively new and, therefore, its definition can be debated, but in the case of

Aaron Walker, Los Angeles Deputy District Attorney John Frey, writer and television commenter Erick

Erickson and Michael Stack, this is what happened. Upon information and belief, someone called the

police on different dates, impersonating each of these persons. In most, if not all cases, they used a

hacker technique to fool emergency services into believing they were calling from that persons phone

number. And in each case, that person impersonating Mr. Walker, Mr. Frey, Mr. Erickson or Mr. Stack

falsely confessed to murderspecifically murdering their wives. In other words, someone called the

police and said something to the effect of Im Aaron Walker, and I just shot my wife. The purpose of

doing so is to invoke a severe police reaction, potentially including a SWAT team, which is why this is

14CITIZEN K at 76 et. seq.; RetroIndy II.

15CITIZEN K at 89 et. seq.; RetroIndy II.

16 R. Joseph Gelarden, Kimberlin Case a Maze of Murder, Deceit, INDIANAPOLIS STAR, October 18

1981 at 1 (available at http://archive.indystar.com/assets/pdf/BG164276919.PDF) visited on December

7, 2013.


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called SWATting and why it is spelled this way. Amicus, in particular, was SWATted on the very

same day that he won a legal victory against the instant Plaintiff.

39. The Plaintiff vigorously denies being involved in any SWATting, but the fact remainsthat there is a clear pattern of the Plaintiffs critics being SWATted. Even if we assume arguendothat

the instant Plaintiff is innocent of them, and that he does not even know who is carrying out these

crimes, the fact remains that there is a person or persons who has been SWATting the Plaintiffs critics

and the person or persons known as Kimberlin Unmasked would quite reasonably fear being the next

victim of this crime if they self-identified.

40. Aside from the Plaintiffs claim that somehow the failure to positively identifyhim/her/themselves to this convicted terrorist and give their home address to him so he can deliver his

packages to him, her or them, the only actof evasion of service of process alleged by the Plaintiff is

moving the server for the Kimberlin Unmasked website overseas. However, even if accepted as true

and the Plaintiff makes no attempt to explain how he knows this has occurredthis has no relation to

actual evasion of service. Moving a server simply means the datahas moved; the person or persons

could be where he/she/they have always been. Further because the Plaintiff admittedly caused the shut

down of Kimberlin Unmaskeds Blogspot website, this person or persons had no choice but to move

their server: they could no longer use the old one.17 Simply put, there is no act of evasion alleged.

17 The Plaintiff also claims that there is something sinister in the choice of companies Kimberlin

Unmasked has used to host his/her/their servers. However, upon information and belief, the Plaintiff up

until recently used the exact same hosting company. He partially abandoned this company on February

15, 2014.


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41. Nor is the affidavit considered automatically proof of evasion. Thus, even if this courtshould accept into evidence a declaration from a convicted perjurerand again, no Maryland state court

wouldit is not sufficient evidence of evasion. While an affidavit is necessary under Md. R. Civ. P. 2

121(b), it is not automatically sufficient. Aside from the conclusory allegation that Kimberlin

Unmasked has evaded service of process and alleging a single act that is non-evasive (moving the server

overseas), the Plaintiff simply hasnt credibly asserted evasion of service of process. And further, even

if the Plaintiff had, this court can reasonably doubt whether this convicted perjurer and document

forgerwho has been caught forging three other documents related to service of process in two other

cases, and has been caught in the instant case presenting an apparently forged document in support of

the instant motionis actually telling the truth. This court can find that, even if the Plaintiff had

properly alleged evasion of service of process, his claims are not credible.

42. Finally, Md. R. Civ. P. 2-121(b) doesnt allow this court to declare this personretroactively served as the Plaintiff clearly desires. Instead, it simply opens the door to an alternate

method of service:

the court may order thatservice be made by mailinga copy of the summons, complaint,and all other papers filed with it to the defendant at the defendants last known residenceand delivering a copy of each to a person of suitable age and discretion at the place ofbusiness of the defendant.

This allows the court to order that service be made by this method. It does not allow the court to order

that service had been madeby that method. The relief is prospective, not retroactive.

43. And, indeed, where would such service be made? What is the last known address of aperson or persons that the Plaintiff clearly cannot identify and cannot locate? Once again, the Plaintiffs


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complete lack of knowledge about the Defendants or Defendants identities or locations defeats any

effort on his part to serve him, her, or them.

C. Because the Plaintiff Doesnt Know How Many Defendants There Are, the Plaintiff CannotClaim that the Defendant or Defendants Have Actual Knowledge, or that Any Method he

has Used to Attempt to Serve Him/Her/Them is Reasonably Calculated to Give Actual

Notice Under Md. R. Civ. P. 2-121(c).

44. The Plaintiff expends a great deal of energy claiming that Kimberlin Unmasked hasactual notice of the suit,

18but that claim only holds up if one assumes that only one person has written

under this name. The Plaintiff has not explained why he believes this to be the case, and upon

information and belief, he cannot prove that Kimberlin Unmasked is one person.

45. Once we recognize that it is possible that more than one person is writing as KimberlinUnmasked, one can never be sure if all of the persons who have written as Kimberlin Unmasked are

informed of the suit, or if any method by which they are being served is reasonably calculated to give

actual notice under Md. R. Civ. P. 2-121(c).

46. A simple hypothetical can illustrate this point. Imagine for the sake of argument thathere are four people who wrote as Kimberlin Unmasked: 1) John Doe, 2) Jane Doe, 3) John Roe, and 4)

Jane Roe. Imagine further that the persons who actually committed the acts that allegedly constitute

copyright infringement are Jane and John Doe, while JohnRoesimply writes pieces for the site that do

not contain any copyrighted material and Jane Roe (who also had nothing to do with any alleged

18

Actual notice is not sufficient in federal courts anyway. If actual notice of a lawsuit was all that wasnecessary, there would be no such thing as a special appearance to challenge the sufficiency of process.

Persons making such an appearance always have actual knowledge of the suit, and yet persons making

such an appearance are often convince the court that they have not yet been served. See, e.g.,Hoag v

Sweetwater Intern., 857 F.Supp. 1420, 1422 (D. Nev., 1994) (granting an unserved Defendant a motion

to quash service).


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copyright violation) is the one who answers all the emails for all the accounts the Plaintiff has sent to

and administers items such as the comment section. In that scenario, all of the methods the Plaintiff has

used to communicate with the Does and Roes are received entirely by one person: Jane Roe. In that

situation, there is simply no guarantee that the one person who actually has noticeJane Roewould

actually communicate the fact they are being sued to the other two persons who actually used the

Plaintiffs alleged copyrighted works.

47. Furthermore, there is no guarantee that the group of people writing today as KimberlinUnmasked still includes the people who committed the alleged infringement upon the Plaintiffs alleged

copyrights. Perhaps John and Jane Doe engaged in the activity that allegedly violated the Plaintiffs

copyright, but between the occurrence of alleged violation and the date on which the Plaintiff filed suit,

they simply decided, for whatever reason, to stop writing for the site. In that case, there would be no

guarantee that the actual, alleged malefactors would currently be writing for Kimberlin Unmasked or

paying any attention to that website at all. For all the Plaintiff knows, the people he wants to sue may

have moved on with their lives, utterly unaware that the work they once did is now the subject of a

lawsuit.

48. Amicusis not representing that any of these scenarios are true. Amicusis only pointingout that they arepossible, and therefore the Plaintiff can only at most claim that one person who writes

as Kimberlin Unmasked is aware of the suit and that the Plaintiff has a reasonable means of contacting

only one person who writes as Kimberlin Unmasked, with no guarantee that this person or person is the

same person or persons who actually, allegedly violated the Plaintiffs alleged copyrights. Therefore

the Plaintiffs claim that he has demonstrated actual knowledge is insufficient and none of his methods

of attempted service is reasonably calculated to give actual notice under Md. R. Civ. P. 2-121(c).


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Simply put, the Plaintiff needs to know more about who he is actually suing before he can claim that

they know of the suit or that any method of service is likely to have actually informed them of that suit.

49. Indeed, even if the Plaintiff got the default judgment that he is plainly attempting toobtain, and he was awarded damages, this court still wouldnt know who owes the Plaintiff. Such is the

state of the information this court has before it.

50. The Plaintiff seems to think that the solution to all these problems is for the court to justdeclare him victorious. This is exactly backwards. The default position of our courts is that the losses

allegedly suffered simply fall where they are first felt. If the Plaintiff wishes to shift the cost of the

alleged damage to his alleged copyrights onto another party, it is his burden to show it is appropriate; it

is not granted simply because he asked. Therefore, the solution to this problem isnt to grant him an

automatic victory by declaring that he has successfully served a person or persons when plainly he has

not. The solution is require him to actually identify and serve the Defendant or Defendants.

CONCLUSION

The Plaintiff, a convicted terrorist, perjurer and document forger, has apparently submitted

forged documents four times, related to three different cases filed concurrently, including the instant.

The fact that he attempted by a fraud on the court to essentially declare the Defendant in default justifies

a strong sanction against the Plaintiff. For this reason alone, this case should be dismissed, with

prejudice.

Further, having been caught with his hand in the cookie jar, the last thing this court should do is

grant him the cookie he has been seeking: a declaration of retroactive service, surely to be followed

with a motion for default judgment.


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Even putting aside the Plaintiffs attempted fraud on this court, such an outcome is not justified

in these circumstances. In the end, the Plaintiff chose to sue when he didnt know who he was suing

where he/she/they are located, or even how many people he was suing. He doesnt even know their

ages, so he cannot be assured that communicating with one of them is equivalent to passing the

information to a person of suitable age and discretion. Md. R. Civ. P. 2-121(b). He simply doesnt

know enough to lawfully accomplish service.

Accordingly, this court should deny the Plaintiffs motion to declare the Defendant served, and dismiss

this entire suit with prejudice as a sanction for attempting a fraud on this court.

Friday, February 28, 2014 Respectfully submitted,

Aaron J. Walker, Esq.Amicus Curiae[personal information and verification page redacted]

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