, Case 8:13-cv-02580-RWT Document 18 Filed 07/16/14 Page 1 of 4

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

GREENBELT DIVISION

BRETT KIMBERLIN,Plaintiff,

,'\ 1,: _,?

v.

KIMBERLINUNMASKEDaka

LYNN THOMAS andPETER MALONE,

Defendants.

VERIFIED MOTION FOR DEFAULT

Now comes Plaintiff Brett Kimberlin and moves this Court, pursuant to Federal

Rule of Civil Procedure 55(a), and 28 U.S.C. 1746, to issue a finding of default as to

Defendants Lynn Thomas and Peter G. Malone for failure to respond to the Amended

Complaint or otherwise plead or defend.

1. Defendants Thomas and Malone are a father/daughter team collectively

acting as an anonymous blogger called KimberlinUnmasked. Pursuant to an

Order from the Montgomery County Circuit Court, Plaintiff learned their

identities.

2. On March 30, 2014, Plaintiff secured new summons from the Clerk and

served the Defendants by Certified Mail, Return Receipt, Restricted Delivery.

Exhibit A. A month later, the envelopes were returned unclaimed. ld.

3. Defendants have actual notice of this Complaint but have intentionally

refused to accept service.

4. More than 120 days has passed since the Defendants have received actual

notice of the Complaint

Case 8:13-cv-02580-RWT Document 18 Filed 07/16/14 Page 2 of 4

5. FederaJ Rule ofCivil Procedure 4(e)(1) allows service "following state law for

serving a summons in an action brought in courts ofgeneral jurisdiction in

the state where the district court is located or where service is made. II

Plaintiff has served Defendants at their last known address, which is listed on

their current AT&T Internet and phone billing records, which Plaintiff

received through a subpoena. Plaintiff has done this in good faith and made

many efforts to give actual notice including sending notice to emails used by

the Defendants such asl l@gmaiJ.com. the email used to

create the KimberlinUnmasked websites and access their

KimberlinUnmasked Twitter accounts. Plaintiff also informed their attorney

in the Maryland Circuit Court case of the Compliant and asked him to accept

service for the Defendants. Plaintiff has also served Defendants with notice of

the original Complaint on their Google Blogspot contact page.

6. Defendants have actual notice of the Complaint, have a copy of it, and are

aware that they have a right to respond to it In fact, Defendants even posted

the suit and selected paragraphs of the suit on their KimberlinUnmasked

blog. For example, on November 3 and 4, 2013, they posted paragraphs from

the suit along with commentary saying that Plaintiff"lied" in the suit

7. Defendants' KimberlinUnmasked website on Google was suspended in

December 2013 for violating numerous Terms ofService including the

copyright infringements alleged in the Complaint Google notified them of the

reasons for suspension. Incredibly, Defendants had used that website to

mock this copyright infringement suit

• Case 8:13-cv-02580-RWT Document 18 Filed 07/16/14 Page 3 of 4

8. Defendants not only repeatedly posted about the Complaint on their blogs

prior to them being suspended, but they has also tweeted about it on two of

their Twitter accounts, @KimberlinUnmask and @BKUnmasked prior to

their suspension. Although Twitter suspended both accounts in December

for violations ofTerms of Service, Twitter records show that Defendants

tweeted about the copyright suit on many occasions.

9. Defendants have had actual notice of the claims set forth in the Complaint

since at least October 22, 2013, as evidenced by the above. While personal

service is tithe classic form of notice always adequate in any type of

proceeding," due process is satisfied when the attempted service is

"reasonably certain to inform those affected." Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306,315 (1950). By and through Plaintiffs

contacts and other means, and by the Defendants' own admissions that they

already have the Complaint, Defendants were clearly informed of the suit

Maryland National Bank v. Tanicorp 796 F.Supp. 188 (1992) (tlTo the extent

that Defendants maintain that service was improper, they have never denied

actually receiving notice' When there is actual notice, every technical

violation of the rule or failure of strict compliance may not invalidate the

service of process."')(citations omitted); Dominic v. Hess Oil v.1. Corp., 841

F.2d 513, 517 (3d Cir. 1988) (no prejudice to defendant under Rule 40)

where defendant had actual notice ofplaintiff's claim and facts on which it

was grounded); Spencer v. Steinman, 968 F. Supp.1011 (E.D. Pa. 1997)

(Case 8:13-cv-02580-RWT Document 18 Filed 07/16/14 Page 4 of 4

(noting that actual notice "is crucial" to determining prejudice to the

defendant).

Wherefore, for all the above reasons, this Court should issue a finding of default

against Defendants for failing to respond to the

R

plaint after having actual notice.

Declaration Under 28 USC 1746

I declare, under penalty of perjury, that the above is true and correct to the bestof my belief.

Certificate of Se

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