_.

, --;
l'.:-.
. -, . ,.... '"
I
BRETT KIMBERLIN,
Plaintiff,
v.
NATIONAL BLOGGERS CLUB,
et al.,
Defendants
UNITED STATES DISTRICT COURT
tiD
DISTRICT OF MARYLAND
GREENBELT DIVISION
Case No. 13-CV-03059-PWG
DEFENDANT HOGE'S MOTION TO DISMISS PLAINTIFF'S SECOND A..'\1ENDED COMPLAINT
COMESNow Defendant William Hoge, pursuant to Item LA.I. of the Case
Management Order (ECF No. 97) for the above captioned matter, and moves that this
Honorable Court dismiss the instant lawsuit pursuant to Fed. R. Civ. P. 12(b)(6) for failure
to state a claim upon which relief can be granted or pursuant to Fed. R. Civ. P. 41(b) for
Plaintiffs failure to obey the Federal Rules of Civil Procedure. In support of this motion
Mr. Hoge states as follows:
SUMMARY
Plaintiff filed the instant lawsuit on 15 October, 2013, and his First Amended
Complaint ("FAC") two days later. He filed his Second Amended Complaint ("SAC") on
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page l of l4
7 March, 2014. Neither the FAC nor the SAC allege with particularity the elements of the
crimes and torts Plaintiff tries to hang his case on. Both are worked examples of the sorts
of "[tlhreadbare recitals of the elements of a cause of action, supported by conclusory
statements" which the Supreme Court has said do not suffice to establish a claim upon
which relief can be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Defendant Hoge's Motion to Dismiss (ECF No.5) ("MTD1") filed with the Court in
December, 2013, outlines the deficiencies of the FAC. MTD1 is hereby incorporated by
reference in order to keep this motion as concise as possible. Defendant Hoge's Reply to
Plaintiffs Oppositions (ECF No. 56) ("Reply") is similarly incorporated as well. To the
extent that the allegations of the FAC are carried over to the SAC, the reasoning offered
for dismissal in MTDI and Reply still apply.
The Second, Sixth, and second Seventh I Claims for Relief in the SAC do not name
Mr. Hoge and should be dismissed with respect to him.
Plaintiff attempts to raise other allegations against Mr. Hoge in the SAC. These
new allegations are discussed below.
Finally, throughout the course of the instant lawsuit, Plaintiff has continued to
disobey the Federal Rules of Civil Procedure. The violations have not been the occasional
slip ups of an inexperienced pro se litigant, and they have had the effect of prejudicing the
ability of Mr. Hoge to conduct his defense of this suit. Such purposeful violations of the
1 There are two Seventh Claims for Relief in the SAC.
2
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page 2 of l4
Rules should be grounds for dismissal under Fed. R. Civ. P. 41(b).
A. DISMISSAL UNDER FED. R. CIV. P. 12(b)(6)
1. Plaintiff's Statement of "Facts"
Paragraph 76 of the SACcontains allegations that are conclusory at best and
simply false in some instances. Plaintiff states that Mr. Hoge "stalked him", but he does
not allege a particular time when or place where such stalking might have occurred. In
the same paragraph Plaintiff states that Mr. Hoge "constantly" publishes photos of "shots
at the shooting range" and that Mr. Roge has stated that he will not hesitate to use a
weapon against Plaintiff. Plaintiff does not cite any particular instance of such a
statement by Mr. Hoge. Further, he claims that Mr. Hoge "attacks" anyone who questions
his conduct and that a "reporter" has received death threats after writing about Mr. Hoge.
Again, he does not point to a specific instance of Mr. Hoge making such a threat. Indeed,
any connection between such a threat, if it actually were made, and Mr. Hoge is purely
conclusory.
In paragraph 77 of the SACPlaintiff says that Mr. Hoge has continued to defame
him "after the filing of this Complaint." However, he does not allege any particular
statement by Mr. Hoge that was defamatory.
3
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page 3 of l4
In paragraph 143
2
of the SACPlaintiff claims that Mr. Hoge has used a "false
narrative" based on SWATting to raise money via his website. Plaintiff fails to allege a
single instance of such fund raising.
In paragraph 156 of the SACPlaintiff asserts that Mr. Hoge incites his readers "to
engage in vigilante action directed at Plaintiff in Maryland." Plaintiff is at least
consistent in that he fails to allege any particular instance of Mr. Hoge making any
related statement, let alone one that would be consider an incitement to vigilante action
under Brandeburg v. Ohio, 395 U.S. 444 (1969).
2. First Claim for Relief-RICO
Plaintiffs SACis awash with conclusory statements but does not properly allege
that he suffered actual damages to his business or property as a result of Mr. Hoge's (or
any other Defendant's) actions. Thus, Plaintiff lacks standing to sue under 18 U.S.C.
S 1964(c)which requires that (1) the plaintiff must be a "person" (2) who sustains injury
(3) to his "business or property" (4) by reason of a defendant's violation of S 1962. To the
extent that Plaintiff tries to state a claim, the non-specific damages he says he suffered
are personal injuries not injury to his business or property. Plaintiffs conclusory
statements simply do not establish a claim upon which relief can be granted.
2 Or paragraph 144 in the marked up version. Beginning with paragraph 88, paragraph
numbers in the marked up version of the SACare offset by one from the clean version.
4
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page 4 of l4
In paragraph 186 of the SAC Plaintiff alleges that Mr. Hoge engaged in Retaliation
Against a Witness or Victim in violation of 18 U.S.C. 1512 or 1513 by "the filing of false
criminal charges, peace orders and frivolous civil suits against Plaintiff." First, Plaintiff
does not plead his case with any particularity. He does not allege what criminal charge,
peace order, or civil suit filed by Mr. Hoge was "false." Second, even if a particular action
were identified, Plaintiff does not say how would it have violated either statute. What
elements of which offenses are alleged? Third, Plaintiff does not allege any damages that
he suffered at the hands of the mythical RICO enterprise. Any RICO Claim for Relief
should be dismissed.
3. Third Claim for Relief.-18 U.S.C. ~ 1985
Paragraph 215 of the SAC alleges that Mr. Hoge was part of a conspiracy to deprive
Plaintiff of his fundamental right to liberty. He neither alleges what Mr. Hoge might have
done to deprive him of that right nor when Mr. Hoge might have done so.
Paragraph 217 of the SAC alleges that Mr. Hoge was part of a conspiracy to deprive
Plaintiff of his right to redress by "online gang activity, threats, intimidation, cyber
bullying, attacks against his family, false narratives, and battery." Again, Plaintiff does
not specify when or how Mr. Hoge engaged in online gang activity (or what online gang
activity might be) or when or how M1'.Hoge threatened, intimidated, or bullied him. He
5
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page 5 of l4
has not described any attack, verbal or physical, by Mr. Hoge on any member of his family.
He does not identifY any false tale narrated by Mr Hoge. He makes no assertion that Mr.
Hoge ever battered him. He does not offer even a conclusory allegation of any act by Mr.
Hoge.
Furthermore, Plaintiff does not allege that there was any invidious race- or class-
based bigotry involved or that there was some nexus with a federal election or proceeding.
See Carpenters v. Scott, 463 U.S. 825 (1985). Plaintiff does not seem to understand that
state court proceedings are not covered by this statute. Plaintiff offers no basis for a claim
upon which relief can be granted under 18 U.S.C. S 1985. The Third Claim for Relief
should be dismissed.
4. Fourth Claim for Relief-Defamation
As noted in MTDl, the only allegations in the FAC touching on defamation of
Plaintiff by Mr. Hoge were outside of Maryland's one-year statute of/imitations. In
paragraph 231 of the SAC Plaintiff attempts to get around the statute of limitations by
amending his complaint with the words "[olver the past year." However, even if Plaintiff
is allowed to move the defamation goal posts, he still has not cited any particular
statement by Mr. Hoge which he alleges to be defamatory. Furthermore, as noted in
MTDI ('1'1 32 - 34), Plaintiffs previous convictions for infamous crimes and other
6
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page 6 of l4
reputational baggage render him defamation proof. Thus, Plaintiff has again failed to
properly allege the elements of the tort of defamation, and the Fourth Claim of Relief
should be dismissed.
5. Fifth Claim for Relief-False Light Invasion of Privacy
Plaintiff has failed to allege with any particularity what Mr. Hoge might have said
or written that injured Plaintiff. He does not allege any particular false statement Mr.
Hoge has made about him. Additionally, Plaintiffs false light claim has the same statute
of limitations issues as his defamation claim, and he has not shown the Court any reason
to turn away from the precedent of Smith v. Esquire, Inc., 494 F. Supp. 967, 970 (D. Md.,
1980). Thus, he has failed to properly allege the elements of this tort, and Fifth Claim for
Relief should be dismissed.
3
6. First Seventh Claim for Relief-Interference with Prospective Economic
Advantage
In paragraphs 274 - 278 Plaintiff attempts of add a new cause of action with a
threadbare recital of the elements of the tort of interference with prospective economic
3 Although it has nothing to do with a false light claim, Plaintiff has also attempted to
allege that Mr. Hoge stalked him but does not specify when or where such stalking
occurred.
7
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page 7 of l4
advantage. The elements are (1) intentional and willful acts; (2) calculated to cause
damage to the plaintiffs in their lawful business; (3) that were done with the unlawful
purpose to cause such damage and loss, without right or justifiable cause on the part of
the defendants (which constitutes malice); and (4) with actual damage and loss resulting.
Natural Design, Inc. v. The Rouse Co., 302 Md. 47,71 (lVId.1984). Plaintiff does not say
what intentional and willful acts were done by Mr. Hoge or any other Defendant. He does
not show that that any act was done with the intent to cause damage to Plaintiffs lawful
business. He does not make any showing of malice. He does not specify what damages he
suffered. Given that Plaintiff does not properly allege a single element of this tort, the
First Seventh Claim for Relief should be dismissed.
7. Eighth Claim for Relief-Intentional Inflection of Emotional Distress
As with the FAC, the SAC does not allege any particular statement or writing by
Mr. Hoge that might have caused such distress and anguish. Further, Plaintiff alleges no
details of any treatment or counseling sought, expense incurred, or other economic loss
caused by any alleged distress or anguish. Thus, Plaintiff has failed to properly allege any
specific damages related to emotional distress or suffering, and the Eight Claim for Relief
should be dismissed.
8
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page 8 of l4
8. Ninth Claim for Relief-Conspiracy to Commit State Law Torts
Plaintiff attempts to allege civil conspiracy as a separate cause of action. This is
contrary to law.
Consistent with this principle, it was sometimes said that a conspiracy
claim was not an independent cause of action, but was only the
mechanism for subjecting co-conspirators to liability when one of their
member committed a tortious act. Royster v. Baher, 365 S.W.2d 496, 499,
500 (Mo. 1963) ("[A]nalleged conspiracy by or agreement between the
defendants is not of itself actionable. Some wrongful act to the plaintiffs
damage must have been done by one or more of the defendants, and the
fact of a conspiracy merely bears on the liability of the various defendants
as joint tortfeasors"). See Halberstam v. Welch, 705 F.2d 472, 479 (CADC
1983) ("Since liability for civil conspiracy depends on performance of some
underlying tortious act, the conspiracy is not independently actionable;
rather, it is a means for establishing vicarious liability for the underlying
tort").
Bech v. Prupis, et al., 529 U.S. 494, 503 (2000). Given that Plaintiff has not successfully
alleged any underlying tort, the Ninth Claim for Relief should be dismissed.
9. Punitive Damages
Plaintiff has not properly alleged any claim for which compensatory damages might
be awarded. Therefore, he is not entitled to any award of punitive damages.
9
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page 9 of l4
B. DISMISSAL UNDER FED. R. CIV. P. 41(b)
Throughout his prosecution of the instant lawsuit, Plaintiff has violated the Federal
Rules of Civil Procedure. While it is true that Plaintiff is a pro se litigant and is not a
lawyer, he is not inexperienced. As Judge Titus recently noted in a copyright case filed by
Plaintiff against one of the Defendants in the instant lawsuit
4
, "The Plaintiff is no
stranger to the processes of this Court." Plaintiffs continuing violations are not occasional
stumbles. Rather, they are the calculated actions of a knowledgable litigant who has tried
to game the system.
Plaintiff has not denied either of the following allegations:
1. The copies of the purported FAC which Plaintiff served on Defendants
Hoge, Walker, and Twitchy were not the same as the FAC filed with the Court.
2. Plaintiff served a forged summons on Twitchy.
Those are just two of the many bad faith violations of the Rules committed by Plaintiff.
In fact, Plaintiff has actually admitted forging the summons sent to Twitchy",
claiming that he was merely trying to replace one of the "21 summons" sent to Plaintiff by
the Clerk of the Court. However, ECF No. 1-2 shows that Plaintiff only submitted 19
4 Judge Titus references numerous civil and criminal matters, all involving and many
instigated by Plaintiff ,in his Memorandum Order (ECF No. 12) in Kimberlin v.
KimberlinunmGslled, Case No. 8:13.CV.02580-RWT (D. Md. 2014).
5 See Plaintiffs Response to February 21, 2014 Order to Show Cause Re Twitchy
Summons, (ECF No. 102), '1 3.
10
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page l0 of l4
proposed summonses to the Court. ECF NO.4 shows that the 18 of the 19 were issued in
October, 2013. The unissued summons was addressed to Twitchy in Colorado Springs,
Colorado. It was not addressed clo Salem Communications in California as the forged
summons was. It could not have been. Salem did not buy Twitchy until December, 2013,
and there was no public announcement of the purchase until the deal was consummated.
Plaintiffs explanation of the forged summons is not consistent with the rest of the record
in the instant lawsuit. The Court might do well to be skeptical of a convicted perjurer and
document forger's explanation of yet another forgery.
Items 1 and 2 above may present the Court with a novel challenge. Mr. Hoge's
research has not found any precedent in the case law of any jurisdiction dealing with
forged versions of court documents being sent through the U. S. Mail for the purpose of
deceiving other parties. However, the Court should consider such behavior as serious
violations of Fed R. Civ. P. 4 and 5, and a severe sanction-at least dismissal with
prejudice-is surely warranted.
Nor are those the only issues with respect to Rule 5. For example, Plaintiff has also
not denied that he failed to serve Mr. Hoge with a copy of a motion, prejudicing Mr. Hoge's
ability to be heard in opposition before the Court ruled.
Furthermore, the record of the instant lawsuit is full of Plaintiffs violations of Fed.
R. Civ. P. 10 (Forms of Pleadings), 11 (Signature and Representations to the Court), and
15 (Amendment of Pleadings). In the case of Plaintiffs Motion for Second Amended
11
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page ll of l4
Complaint (ECF No. 100), Plaintiff also ignored the requirements of L.R. 103.6 by failing
to place the name of an added defendant (Twitchy) in boldface. This lack of proper
markup continues throughout the SAC, from the caption to the prayer for relief with its
unflagged increase from $1,000,000 to $2,000,000 in damages and other new relief sought.
The certificate of service filed with the motion says that Mr. Hoge was served with a copy
by mail on 7 March, but the envelope he received was postmarked "MAR 10, 14." Also,
while the envelope contained unsigned clean and "marked up" copies of the SAC, no copy
of the motion was enclosed.
The instant lawsuit should be dismissed because of Plaintiffs multiple bad faith
failures to obey the Federal Rules of Civil Procedure.
CONCLUSION
WHEREFORE, Defendant Hoge asks this Honorable Court to dismiss with prejudice
the instant lawsuit for Plaintiffs failure to state a claim upon which relief can be granted
or, alternatively, for Plaintiffs failure to obey the Federal Rules of Civil Procedure and to
order the following relief:
1. That Mr. Hoge shall have his reasonable expenses as determined by the Court,
2. That Plaintiff shall pay said expenses to the Clerk of the Court for disbursement
to Mr. Hoge,
12
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page l2 of l4
3. That Plaintiff shall have nothing,
4. That Plaintiff shall be enjoined from filing any pro se civil litigation in any court
of The United States without prior approval from a Magistrate Judge or Special Master,
and
5. That Mr. Hoge shall have such other relief as the Court may deem just and
proper.
Date: 13 March, 2014 Respectfully submitted,
William John Joseph Hoge, III, pro se
20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com
Verification
\\\\\11 1111""",
\\\\ 'f\E. W ~ 1
11
,.1.
",~",\ "'!'1.L>.~/~
~~~ ..~~~'{PU6?:.~\.
! ./~MY "'\ ~
~ ( COMMISSION i E
~ \ EXPIRES ! ;;
~ ... MAV25,2015/ ~
~ 0...... ..,~fY~
"", 0' ~:~
,,'1"''A O ",
"'1: or. 0 C",''
'111 lL \\\\
11""""11\1\\\'
/t-utu t a~j
(print name of notary public)
NOTARYPUBLIC
My Commission expires on:
I, William John Joseph Hoge, III, state under penalty of perjury that the foregoing
information is true and correct.
13
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page l3 of l4
Certificate of Service
Icertify that on the 13th day of March, 2014, Iserved copies of this Motion to Dismiss on
the following parties via U. S. Mail or by email as noted:
Brett Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817
The American Spectator at 1611 North Kent Street, Suite 901, Arlington, Virginia 22209
Michael Smith, Esq., for Michelle Malkin and Twitchy at smith@smithpllc.com
Mark Bailen, Esq., for Erick Erickson, RedState, Simon & Schuster, Glen Beck,
Mercury Radio Arts, The Blaze, and James O'Keefe at mbailen@bakerlaw.com
Caitlin Parry Contestable, Esq., for DB Capitol Strategies and Dan Backer at
caitlin@dbcapitolstrategies.com
Linda S. Mericle, Esq., for The Franklin Center at linda.mericle@verizon.net
Ron Coleman, Esq., for John Patrick Frey and Mandy Nagy at rcoleman@goetzfitz.com
Paul Alan Levy, Esq., for Ace of Spades at levy@citizen.org
Aaron Walker, Esq., at aaronjw72@gmail.com
Breitbart.com at loconnor@breitbart.com and larry@breitbart.com
Robert Stacy McCain at r.s.mccain@att.net
Ali Akbar for himself and the National Bloggers Club at ali@blogbash.org
Kimberlin Unmasked at kimberlinunmasked@hush.com
Iam unable to serve Lynn Thomas because that person's address is not yet known to me.
WillI ohn J seph Hoge, III, pro se
20 Ridge Road
Westminster, Maryland 21157
(410) 596.2854
himself@wjjhoge.com
14
Case 8:l3-cv-03059-PWG Document l07 Filed 03/l3/l4 Page l4 of l4