Professional Documents
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Plaintiff,
v.
IN THE
Cts. & Jud. P. 8-507.1 Nothing in the Kimberlins Anti-SLAPP Motion provides
any evidence that Mr. Hoge acted with bad faith against the Kimberlins, that he
acted with an intent to inhibit their rights under the First Amendment or the
Declaration of Rights, or that the relief he seeks would inhibit those rights.
As for bad faith, the Kimberlins never actually allege in their Motion that
Mr. Hoge acted in bad faith, and nothing in their Motion would support such a
finding against Mr. Hoge. Nowhere in the Kimberlins Anti-SLAPP Motion do they
deny that they did any of the acts alleged, and nowhere do they offer any evidence
contradicting the facts Mr. Hoge has alleged in the Complaint. Simply put, they
have done nothing to show that Mr. Hoge lacked substantial justification to file the
instant lawsuit.2
As for an imagined intention to inhibit their rights, the Kimberlins try to
Articles 10 and 13 deal with right of free debate within the Legislature and the
right to petition the Legislature. Neither of the Kimberlins is a member of the
Legislature, and the Complaint does not address any communication direct to the
Legislature.
2
While there is not a great deal of case law on Marylands Anti-SLAPP Law, Judge
Masons finding during the 3 September, 2015, Motions Hearing in Kimberlin v.
National Bloggers Club, et al. (II) is on point:
And to the extent that the Court is asked to grant relief under the
slap [sic] suit statute, I find with respect to that statute that theres
no evidence based upon these motions that I could find at this time
that hes [Kimberlins] acting in bad faith which I would be required
to apply the slap [sic] suit statute.
Kimberlin v. National Bloggers Club, et al. (II), Case No. 403868, Hearing
Transcript (Md. Cir.Ct. Mont. Co. Sept. 3, 2015) at 88. Transcript extract attached
as Exhibit A.
2
stretch the protections of the Anti-SLAPP Law to cover the acts alleged in Mr.
Hoges Complaint, claiming, for example, that [t]the Anti-Slapp [sic] statute
immunizes a defendant who communicates with a government body. Anti-SLAPP
Motion, 6. Of course, that would normally be true, but it cannot be the case that
the statute protects willful lies told to a District Court Commissioner in order to
cause a false criminal charge to be issued. If such perjury were protected, then it
would not be possible for the tort of malicious prosecution to exist. However, the
tort does exist, and it exists because the First Amendment does not protect perjury
and the Declaration of Rights doesnt protect lying on an Application for Statement
of Charges. Such false statements are the basis of the claims Mr. Hoge has brought
in good faith as Counts I and XI of the Complaint.
Mr. Hoge is not suing the Kimberlins for exercising their right to seek redress
or for seeking protection from the State. Hes suing them for perjuring themselves
by falsely accusing him of crimes. The Kimberlins have not offered any evidence to
the contrary in support of their Motion.
Additionally, the allegations of defamation in the Complaints Counts II
through X lay out the who, what, when, and where of the the Defendants
defamatory acts, demonstrating that the Kimberlins and their Co-Defendants acted
with constitutional malice, and nothing in the Kimberlins Anti-SLAPP Motion
offers any evidence to the contrary. Therefore, none of the Kimberlins
communications are protected under 5-807(c).
In summary, the Complaint alleges that the Kimberlins engaged in
3
peace order petition. As alleged in the Complaint, both of the criminal charges
stemming from the Kimberlins false Applications for Statement of Charges were
resolved in Mr. Hoges favor. Similarly, the peace order petition filed by Brett
Kimberlin was denied by both the District Court and the Circuit Court for
Montgomery County.
As far as the law is concerned, all those matters are settled, and the
Kimberlins have offered no evidence to the contrary in their Motion. Nothing is
pending in any other venue. There is nothing for this Court to wait on.
Therefore, a stay is inappropriate, and no such relief is available.
ADDITIONAL MATTERS
Mr. Hoge respectfully asks the Court to take note of the following:
First, Neither Brett nor Tetyana Kimberlin has provided the information
required by Rule 1-311 (i.e., their address(es), telephone numbers, and email
addresses) with their signature blocks on their Motion. Indeed, they have not
provided that information on any paper they have filed with this Court in the
instant lawsuit.
Second, Mr. Hoge has never been served with a copy of Docket Item 46. He is
aware of its contents only because he bought a copy from the Clerk of the Court.
The Certificate of Service accompanying the Motion states I certify that I
mailed a copy of this motion on [sic] Plaintiff this 9th day of May, 2016, and it is
signed by Brett Kimberlin. The Courts docket shows that the motion was both
filed and entered on 05/18/2016. Mail rarely takes more than two or three days to
6
move from Bethesda to Westminster, so if it were true that Kimberlin mailed a copy
of the Motion to Mr. Hoge on the 9th, he should have received it before the Court
received its copy. Yet, Mr. Hoge had not received a copy as of 4 June, 2016.
Given Brett Kimberlins history of failing to serve court papers on adverse
parties,3 the Court should take this as a willful violation of the Kimberlins duty to
serve court papers on all parties who have appeared in this matterwhich by itself
provides a sufficient reason to dismiss the Anti-SLAPP Motion.
CONCLUSION
As demonstrated above, the instant lawsuit is not a SLAPP suit. Even if it
were, none of the relief provided for under the Cts. & Jud. P. 5-807(d) is available
to Brett or Tetyana Kimberlin because they have not filed a motion to dismiss under
Rule 2-322 and because the matters about which they communicated with the
government and/or the public are settled.
WHEREFORE, Mr. Hoge asks the Court to DENY Defendants Brett and Tetyana
Kimberlins Motion to Dismiss for Violation of Marylands Anti-SLAPP Statute or
Motion to Stay Proceedings Until Anti-SLAPP Hearing is Conducted (Docket Item
46) and for such other relief as the Court may find just and proper.
Respectfully submitted,
CERTIFICATE OF SERVICE
I certify that on the 6th day of June, 2016, I served copies of the foregoing on
the following persons:
William M. Schmalfeldt by First Class U. S. Mail to 3209 S. Lake Drive, Apt. 108,
St. Francis, Wisconsin 53235
William Ferguson by First Class U. S. Mail to 10808 Schroeder Road, Live Oak,
California 95953
Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817 (last known address)
Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817 (last know address)
AFFIDAVIT
I, William John Joseph Hoge, solemnly affirm under the penalties of perjury
that the contents of the foregoing paper are true to the best of my knowledge,
information, and belief.
Date: 6 June, 2016
William John Joseph Hoge
Exhibit A
Extract from the transcript of the Motions Hearing held on 3 September, 2015, in
Kimberlin v. National Bloggers Club, et al. (II), Case No. 403868V (Md. Cir. Ct.
Mont. Co. Sept. 3, 2015).
------------------------------X
:
BRETT KIMBERLIN,
:
:
Plaintiff,
:
:
v.
:
:
NATIONAL BLOGGERS CLUB, et al.:
:
Defendants.
:
:
------------------------------X
HEARING
Rockville, Maryland
September 3, 2015
------------------------------X
:
BRETT KIMBERLIN,
:
:
Plaintiff,
:
:
v.
:
:
NATIONAL BLOGGERS CLUB, et al.:
:
Defendant.
:
:
------------------------------X
Rockville, Maryland
September 3, 2015
WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE:
APPEARANCES:
FOR THE PLAINTIFF:
KIMBERLIN BRETT, Pro se
8100 Beech Tree Road
Bethesda, Maryland 20817
FOR DEFENDANT BREITBART.COM:
MARK I. BAILEN, Esq.
Baker & Hostetler, LLP
1050 Connecticut Avenue, Suite 1100
Washington, D.C. 20036
FOR DEFENDANT WILLIAN HOGE:
PATRICK OSTRONIC, Esq.
932 Hungerford Drive, Suite 28A
Rockville, Maryland 20850
DEPOSITION SERVICES, INC.
APPEARANCES (Continued):
FOR DEFENDANTS MICHELLE MALKIN AND TWITCHY:
MICHAEL F. SMITH, Esq.
Smith Appellate Law Firm
7566 Main Street, Suite 307
Sykesville, Maryland 21784
FOR DEFENDANT AARON WALKER:
AARON WALKER, Pro se
P.O. Box 3075
Manassas, Virginia 20108
FOR DEFENDANTS DEBLASE INC., MERCURY RADIO ARTS,
AND GLENN BECK:
SCOTT J. SHOULDER, Esq.
Cowan, Debaiet, Abrahams & Sheppard, LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
FOR DEFENDANT MANDY NAGY:
T. BRUCE GODFREY, Esq.
Jezic, Krum & Moyse, LLC
2730 University Blvd, Suite 604
Silver Spring, Maryland 20902
FOR DEFENDANTS DAN BACKER AND DB CAPITOL STRATEGIES:
CHRISTINA PAULINE SIROIS, Esq.
DB Capitol Strategies, PLLC
203 South Union Street, Suite 300
Alexandria, Virginia 22314
I N D E X
Page
Judge's Rulings
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MR. KIMBERLIN:
summary judgment --
THE COURT:
I understand.
MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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COUNSEL:
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Okay.
Let me --
Have a seat.
Okay.
No.
JUDGE'S RULING
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defendants.
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defendants.
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And so until
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don't believe that that is an issue that the Court could decide
the extent that the Court is asked to grant relief under the
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that you've had a long time to know what they are alleging in
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So,
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Judge Albright.
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with the Court that had been altered or amended as Judge Ryan
MR. GODFREY:
THE COURT:
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MR. GODFREY:
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THE COURT:
Come on up.
May I approach?
Yes, and this is the motion at tab 58 for
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representative capacity.
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109
By:
_________________________
Caroline G Gibson
Transcriber
IN THE
PROPOSED ORDER
_______________________________________
Circuit Court Judge