BK v NBC, Et Al Motion Amended Report Redacted

8/13/2019 BK v NBC, Et Al Motion Amended Report Redacted

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BRETT KIMBERLIN,

Plaintiff,

v.

NATIONAL BLOGGERS CLUB,

et al.,

Defendants

DEFENDANT HOGES MOTION FORAMENDED REPORT OF STATUS OF SERVICE

COMES NOWDefendant William Hoge and hereby moves that this Court require

Plaintiff to file an amended version of Plaintiffs Status Report Re Service of Complaint in

order to address apparent discrepancies in Plaintiffs report. In support of this motion Mr.

Hoge states the following:

SUMMARY

1. Defendant Hoge brings this motion because it appears that Plaintiff may be

attempting to perpetrate a fraud upon the Court by including forged exhibits

demonstrating service and misstating information in his report on the status of service to

defendants. Service of process is not a merely technical issue, and, if it has not been

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

GREENBELT DIVISION

Case No. 13-CV-03059-PWG


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properly completed, there is an increased likelihood that responses from the various

defendants will arrive at the Court over an extended period. Defendant Hoge has

standing to bring this matter to the Courts attention because of its possible influence on a

speedy conclusion of the instant lawsuit.

2. While it might seem fantastic that Plaintiff would attempt to present forged

evidence of service, it would be consistent with his prior and recent conduct. Plaintiff

holds the distinction of being one of the few people convicted of the offense of illegal use of

the Seal of the President of the United States in violation of 18 U.S.C. 713. That

conviction was in connection with forgery of documents and Department of Defense

insignia for the purpose of convincing others that he was employed by U.S. Government as

a cover for his drug smuggling operations. As noted in U.S. v. Kimberlin1,

FBI Agent Lucas ... had been called to a printing establishment. He

observed defendant [Brett Kimberlin] wearing clothing with badges andinsignia. The insignia was identical to that of the Security Police of the

Defense Department. Defendant had in hand a facsimile of the

Presidential Seal and other documents, one or more of which he

attempted to chew up.

Meanwhile, on 13 January, 2014, Plaintiff was caught submitting an altered Certified

Mail green card in an exhibit for a motion for alternate service in a parallel lawsuit in a

Maryland state court2which Plaintiff admits is related to the instant suit (details in

2

1805 F.2d 210, 228 (7th Cir. 1986).

2Defendants Walker, McCain, Akbar, Kimberlin Unmasked, and Hoge are also

codefendants in Maryland case styledKimberlin v. Walker, et al., Md. Cir.Ct. Mont. Co.,

Case No. 380966V.


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paragraph 4 below). Some of the copies submitted in Exhibit E of Plaintiffs report may

have been altered, specifically, items purporting to relate to service on Defendants McCain

and Akbar.

QUESTIONABLE SERVICE ON ROBERT STACY MCCAIN

3. Page 3 of Plaintiffs Exhibit E is offered to the Court as the returned envelope

and Certified Mail green card for an attempted service on Robert Stacy McCain. See

Exhibit A. The document does not appear to be genuine. The envelope shows only $1.25

in postage, but, according to information posted at http://www.usps.com, the USPS

charges for Certified Mail, Return Receipt Requested, totaled $5.65 during 2013. There is

insufficient postage paid for a Certified Mail green card to be associated with that

envelope. On information and belief, the USPS returns such pieces of mail to the sender

marked as having insufficient postage, and Plaintiffs document bears no such marking.

Therefore, Plaintiffs document should not exist. Plaintiff should be required to account

for these discrepancies.

QUESTIONABLE SERVICE ONALIAKBAR

3. Page 2 of Plaintiffs Exhibit E is purported to be the returned envelope and green

3


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card for an attempted service on Ali Akbar. The green card shown does not have the

Restricted Delivery Yes box checked. See Exhibit B. This is consistent with one

purported copy of the same envelope and green card filed in a parallel Maryland state suit

(Md. Cir.Ct. Mont. Co., Case No. 380966V.) in a motion for alternate service for Defendant

Akbar. (id,. Docket No. 38.) However, Plaintiff also filed a motion for sanctions against

Akbars counsel (id., Docket No. 60.) which included an exhibit purporting to show exactly

the same green card with the Restricted Delivery Yes box checked where it had not been

before. See Exhibit C. On 13 January, 2013, Judge Burrell denied Plaintiffs motion for

alternate service in the Maryland lawsuit when she was made aware of the difference

between the two exhibits. She held that Plaintiff had not served Defendant Akbar as

required under Md. Rule 2-121(a). This necessarily means that she did not believe that

the document purporting to demonstrate service was authentic. These discrepancies, as

well as Judge Burrells findings, call into question the authenticity of the green card

shown on page two of Plaintiffs Exhibit E. Indeed, if the Plaintiff has forged any

documents, the authenticity of all of the Plaintiffs documentation should be questioned.

OTHER DEFECTIVE SERVICE

5. Plaintiff states that he mailed formal service of process on 3 January, 2014.

Plaintiffs Exhibit B shows 14 USPS mailing receipts. Mail service in the instant lawsuit

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allowed by Fed. R. Civ. P. 4(e)(1) would be either by rules applicable in Maryland or by the

rules of the other state or territory where the defendant is served. Assuming that Plaintiff

would choose the rule more favorable to himself, service on the defendants in California3,

Colorado4, the District of Columbia5, Illinois6, Virginia7, and West Virginia8would, at

minimum, have to comply with Md. Rule 2-121(a) because those other jurisdictions rules

are either equivalent or more strict. Md. Rule 2-121(a) requires that mail service be via

Certified Mail, Return Receipt Requested, Restricted Delivery. Given that none of the

mailing receipts listed in the Plaintiffs Exhibit B show that the fee for Restricted Delivery

was paid, service to defendants in all those states should be considered defective.

6. On information and belief, Plaintiff attempted service on the following defendant

in California: Breitbart.com; in Colorado: Michelle Malkin and Twitchy; in the District of

Columbia: Red State; in Virginia: Ali Akbar and National Bloggers Club; and in West

Virginia: Robert Stacy McCain. Plaintiffs mailings to persons in Camarillo, California,

and Saint Charles, Illinois, may have been attempts to serve Defendants Ace of Spades or

Kimberlin Unmasked. Since the attempted service on each of these nine defendants was

5

3Cal. Code Civ. P. 415.10, et seq.

4Colo. R. Civ. P. 4.

5D.C. R. Civ. P. 4.

6735 ILCS 5/2-203.

7Va. Code 8.01-296.

8W. Va. R. Civ. P. 4(d)(1)(E).


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defective for the reason described in paragraph 5 above, Plaintiff should be required to

amend his report to correct his errors.

POSSIBLY COMPLETED SERVICE

7. Plaintiff may have met the requirements for service in Georgia9, New York10,

and Texas

11

in his service of Defendants Glen Beck, Erick Erickson, James OKeefe,

Mercury Radio Arts, Simon & Schuster, Lee Stranahan, and The Blaze. Thus, service on

those defendants may have been completed. Plaintiff should be required to provide proper

proof of service per Fed. R. Civ. P. 4(l).

8. Plaintiff says that he has been in communication with counsel for John Patrick

Frey and Mandy Nagy. However, he has not shown any evidence of such communication,

and neither party has filed any motion or answer with the Court. Since Plaintiff saying

that he has effectively served Frey and Nagy, he should provide documentation of their

acceptance or waiver of service.

ADDITIONAL PROBLEMS IN THE REPORT

6

9Ga. Code 9-11-4(d)(3)(B).

10N.Y. Civ. Law 2103.11Tex. R. Civ. P. 106(a)(2)


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9. The Courts Letter Order dated December 30, 2013, requires that Plaintiffs

report should detail for each defendant

i) Whether that Defendant has been served;

ii) If so, the date and method of service; and

iii) If not, the efforts that Plaintiff has undertaken to serve said

Defendant.

At no point in the report is there any statement of when service was completed on each

defendant who Plaintiff asserts was served. Further, Plaintiff seems to confuse mailing

waiver notices with actual service of process. Other than stating that he asked the

counsel for Kimberlin Unmasked in another matter to accept service for that defendant,

Plaintiff has not described any actions undertaken to serve the anonymous defendants Ace

of Spades and Kimberlin Unmasked or the other defendants whose whereabouts are

unknown to him.

10. In paragraph 1 of his report Plaintiff states that he mailed service waivers to 21

of the defendants, all except for Kimberlin Unmasked, on 22 October, 2013. However,

Plaintiffs Exhibit A shows receipts for 24 piece of mail. Three pieces of mail were sent to

Rockville and Kensington, Maryland, and Salt Lake City, Utah. On information and

belief, there are no defendants to be found in those locations, nor is any counsel in the

instant lawsuit for any defendant located in those cities.

11. In paragraph 4 of his report Plaintiff provides an error-filled Service Chart.

which is not consistent with his own documentation. On information and belief, here is a

corrected version based on the information and exhibits contained in Plaintiffs report.

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Defendant Waiver Sent Summons Sent Counsel Comment

National Bloggers Club Wrong Address? Wrong Address? Unknown Not Served

Ali Akbar Wrong Address? Wrong Address? Unknown Not Served

Patrick Frey Received Not Sent Represented Not Served

Erick Erickson Sent Sent Unknown Possibly Served

Michelle Malkin Sent Defective Unknown Not Served

Glen Beck Sent Sent Unknown Possibly Served

Aaron Walker Sent Waived Pro Se Service Waived

William Hoge Sent Waived Pro Se Service Waived

Lee Stranahan Sent Sent Pro Se Possibly Served

Robert Stacy McCain Wrong Address Defective Unknown Not Served

James OKeefe Sent Sent Unknown Possibly Served

Mandy Nagy Sent Not Sent Represented Not Served

Breitbart.com Sent Defective Unknown Not Served

DB Capitol Strategies Sent Waived Represented Service Waived

Twitchy Sent Defective Unknown Not Served

The Franklin Center Sent Waived Represented Service Waived

Simon & Schuster Sent Sent Represented Possibly Served

Kimberlin Unmasked Not Sent Not Specified Unknown Not Served

Mercury Radio Arts Sent Sent Unknown Possibly Served

The Blaze Sent Sent Unknown Possibly Served

Ace of Spades Wrong Address? Not Specified Unknown Not Served

Red State Sent Defective Unknown Not Served

The information in Plaintiffs own report shows that half of the defendants have not been

properly served, seven may have been served, and four have waived service.

8


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12. In paragraph 5 of his report Plaintiff alleges that Robert Stacy McCain is

actively avoiding service of process. Defendant Hoge saw Defendant McCain in the same

courtroom as Plaintiff during hearings in the parallel Maryland lawsuit on 27 November,

2013, and on 13 January, 2014. On both occasions, Plaintiff was aware of Mr. McCains

presence and could have arranged to have him personally served by a deputy sheriff or

other third party, but he failed to do so. Mr. McCain does not appear to be evading

service.

13. In paragraph 5 of his report Plaintiff alleges that Defendants Ace of Spades, Ali

Akbar, Kimberlin Unmasked, and National Bloggers Club are actively evading service by

refusing to accept delivery of Certified Mail. Plaintiff has not shown that he knows the

proper mailing addresses for those defendants who he chose to sue without knowledge of

their whereabouts. Since it is likely that Plaintiff is mailing service to the wrong

addresses, Plaintiff should be required to show what steps he has taken and what steps he

plans to take to locate each of those defendants.

14. In paragraph 8 of his report Plaintiff writes of providing copies of the suit to

Defendants Kimberlin Unmasked and Ali Akbar via email on 2 January, 2014. He states

in his certificate of service that he served the status report on those defendants by email

as well. As the Court noted in its Letter Order dated January 7, 2014, Fed. R. Civ. P.

5(b)(2) requires physical service unless a party consents to electronic or other service in

writing (emphasis in original). Plaintiff should be required to prove that he received such

9


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Exhibit A

Copy of page 3 of Plaintiffs Exhibit E

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Exhibit B

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Exhibit C

Copy of the green card and envelope included in Md. Cir.Ct. Mont. Co., Case No. 380966V,Docket No. 60, Exhibit F.

Note: The distorted image is as provided in the copy served on Defendant Hoges counsel

in that lawsuit.

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