NO.

15-1412

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
_________
BRETT C. KIMBERLIN,
Appellant,
V.

NATIONAL BLOGGERS CLUB, ET AL.,

Appellee.

_________
Appeal From The United States District Court
For The District Of Maryland
Southern Division
_________
INFORMAL OPPOSITION BRIEF OF APPELLEE
AARON J. WALKER, ESQ.
_________
Aaron J. Walker, Esq.
Va Bar# 48882
[redacted]
Manassas, Virginia 20109
[redacted]
AaronJW72@gmail.com

APPELLEE WALKERS INFORMAL OPPOSITION BRIEF

Appellee Aaron J. Walker, Esq.,1 provides this Informal Opposition Brief in
response to the Informal Brief (mislabeled an Appellants Lead Brief) (Doc. 22)
filed by Appellant Kimberlin.
I.
THIS COURT LACKS JURISDICTION BECAUSE THERE HAS BEEN
NO FINAL JUDGMENT
Mr. Kimberlin asserts, without citation to any authority, that this Court has
jurisdiction over the matter. It does not.
By way of background, Mr. Kimberlin is attempting a piecemeal appeal of
the proceedings below. The Second Amended Complaint filed by Mr. Kimberlin
(ECF No. 135)2whose partial dismissal he now appealsincluded three counts
based on federal law, and six counts based on Maryland state law. The counts
based on federal law were 1) alleged violation of the Racketeering Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. 1961, et seq, 2) alleged violation
of the Civil Rights Act of 1866 (42 U.S.C. 1983), and 3) alleged violation of the
Ku Klux Klan Act (1985). The counts based on state law arose from alleged
1) defamation, 2) false light invasion of privacy, 3) tortious interference with an
existing contract, 4) tortious interference with business relationships, 5) battery,
Mr. Walker refers to himself in the third person for stylistic purposes and to depersonalize this case.
2
All ECF references are to the case below, currently styled Kimberlin v. Frey, No.
GJH-13-3059 (D. Md. 2013).
2
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and 6) intentional infliction of emotional distress. On March 17, 2015, that case
was dismissed in nearly every part (Memorandum Opinion, Kimberlin v. NBC, et
al. (I) (ECF No. 263)), and that dismissal was affirmed in an opinion denying
reconsideration (ECF No. 269). The RICO claims and the 1985 claims were
dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The 1983
claim, advanced solely against Mr. Frey, was allowed to proceed to discovery
(which is where the case is at present). Finally, the court declined to exercise
supplemental jurisdiction under 28 U.S.C. 1367 over the state law claims 3 and
dismissed those claims.

This appeal represents Mr. Kimberlins attempt to

overturn the dismissal of the federal claims before the conclusion of the entire
case.
This is forbidden by 28 U.S.C. 1291 which states in relevant part that [t]he
courts of appeals... shall have jurisdiction of appeals from all final decisions of the
district courts of the United States[.] (emphasis added). This Court has explained
the meaning and policy behind this rule as follows:
We lack jurisdiction to review a district courts order unless that order
constitutes a final judgment. See 28 U.S.C. 1291 (1994). This
limit on appellate jurisdiction guards against the waste of judicial
resources and the unnecessary resolution of issues later rendered
moot, reflecting what has been described as an historic federal policy
against piecemeal appeals. Curtiss-Wright Corp. v. General Elec.
The court did not have original jurisdiction over those state-law claims because
there wasnt complete diversity between the appellees and Mr. Kimberlin.
Specifically, Mr. Kimberlin and Mr. Hoge are both domiciled in Maryland.
3
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Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (quoting

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S.Ct. 895,
100 L.Ed. 1297 (1956)). Ordinarily, a district court order is not final
until it has resolved all claims as to all parties. See Braswell
Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331, 1335 (4th Cir.1993).
Fox v. Baltimore City Police Dept., 201 F. 3d 526, 530 (4th Cir. 2000). As noted
above, the decision of the district court is not yet final; the case continues to
proceed against Mr. Frey. Therefore, this appeal is ordinarily barred as a matter of
jurisdiction.
Further, while the use of the term ordinarily suggests that occasionally
exceptions can be made, no exception that Mr. Walker is aware of applies to the
current circumstances.

For instance, in Coopers & Lybrand v. Livesay, the

Supreme Court stated that collateral orders could be appealed if it met the
following test:
To come within the small class of decisions excepted from the finaljudgment rule by Cohen, the order must conclusively determine the
disputed question, resolve an important issue completely separate
from the merits of the action, and be effectively unreviewable on
appeal from a final judgment.
437 U.S. 463, 468 (1978). While one might doubt that this proposed appeal meets
the second prong of this test,4 there is no question that it does not meet the third
prong. There is no reason why this Court cannot review the decision to dismiss the

The issue doesnt appear to be important or particularly separate from the ultimate
merits.
4
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majority of the case under Fed. R. Civ. P. 12(b)(6) after the remainder of the case is
resolved.
This case also doesnt meet the exception presented in dictum in Gillespie v.
United States Steel Corporation, allowing courts to balance the inconvenience
and costs of piecemeal review on the one hand and the danger of denying justice
by delay on the other. 379 U.S. 148, 152-53 (1964). Putting aside the significant
doubts about the continuing vitality of the Gillespie dictum,5 this test wouldnt
provide any relief to Mr. Kimberlin in this case. There is no unique danger of
denying justice by delay to weigh against the costs of piecemeal review. Thus, the
Gillespie exception, if it is still viable, fails to provide Mr. Kimberlin relief.
Nor does the present circumstances meet the exception provided for in
Idlewild Bon Voyage Liquor Corporation v. Epstein, 370 U.S. 713, 715 n.2 (1962),
providing for interlocutory appeal of an order that placed the appellant effectively
out of court. This is otherwise known as the death knell doctrine. There is

See, e.g. Kmart Corp. v. Aronds, 123 F.3d 297, 300 (5th Cir. 1997) (stating that the
Fifth Circuit no longer recognizes the Gillespie exception); Anderson v. City of
Boston, 244 F.3d 236, 241 (1st Cir., 2001) (holding that Gillespie does not provide
an independent exception when no other exception to the final judgment rule
applies); Green v. Department of Commerce, 618 F.2d 836, 841 (D.C. Cir. 1980)
(No federal appellate court, to our knowledge, has ever followed the Gillespie
dictum in a case in which the appeal could not be justified on the basis of some
other, narrower, policy demanding deviation from the finality rule).
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nothing preventing the remaining count from going forward against Mr. Frey and,
upon information and belief, that is precisely what is occurring.
Likewise, the Forgay doctrine (referring to Forgay v. Conrad, 47 U.S. (6
How.) 201 (1848)), would also be of no avail. As explained by the Sixth Circuit:
The Forgay doctrine is a narrow exception to the finality of judgment
rule; it allows immediate appellate court review of district court orders
which adjudicate part of one claim by directing the immediate
delivery of property from one party to another, when there is the
possibility that the losing party will experience irreparable harm if
appeal of the execution is not allowed.
Jalapeno Property Management v. Dukas, 265 F.3d 506, 512 n. 8 (6 th Cir. 2001).
The court below has ordered no such transfer of property, rendering the rule
inapplicable.
If there are any other exceptions to the final judgment rule that might have
vitality, Mr. Walker is unaware of them. Therefore, with no final judgment, and no
known exception to the final judgment rule applying to this case, Mr. Kimberlins
appeal is premature, and this Court lacks jurisdiction to even hear it.
II.
LIBERAL CONSTRUCTION WOULD NOT HAVE HELPED THIS
EXPERIENCED PRO SE APPELLANT AND THEREFORE DISMISSAL
BELOW WAS CORRECT
The fact that the dismissal below is proper in the ordinary case is almost too
obvious to state.

One need only read Judge Hazels learned and thorough

catalogue of the legion of failures in Mr. Kimberlins Second Amended Complaint

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to see this. For instance, when it comes to the RICO counts, it is not just that the
court found that Mr. Kimberlin failed to properly allege an injury to business or
property under RICO or that such injury was proximately caused by any alleged
predicate act. The court found that he also failed to allege that a RICO enterprise
existed. He also failed to properly allege a single predicate act, failing to properly
allege 1) mail or wire fraud under 18 U.S.C. 1341 and 1343, 2) obstruction of
justice under 1503, 3) witness intimidation under 1512, 4) witness retaliation
under 1513, 5) extortion under 1951, or 6) money laundering under 1957.
Further, even if he had successfully managed to allege two predicate acts, he also
failed to allege a pattern of racketeering activity. Likewise, between the main
opinion (ECF No. 264) and the opinion in response to Mr. Kimberlins motion for
reconsideration (ECF No. 269), the court made it clear that Mr. Kimberlin didnt
allege 1) a relationship to a federal election, 2) a relationship to a proceeding in
federal court,6 or 3) invidious animus, as required by the Ku Klux Klan Act (42
U.S.C. 1985). The opinion makes it clear that Mr. Kimberlin didnt merely miss
by a narrow margin, but failed utterly in what a plaintiff is supposed to do. Indeed,
the court below used the word fail or some variant forty times in the main
opinion, and five more times in the opinion denying reconsideration.

That

Mr. Kimberlin claims that proceedings before Congress or mere federal

investigations are sufficient. However, the first part of 1985(2) speaks of any
court of the United States, not any Congress of the United States, or any
criminal investigation of the United States.
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averages out to a failure on every other page of the complaint. No amount of

citations from long-dead precedents that have been supplanted by Ashcroft v. Iqbal,
556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) can
obscure Mr. Kimberlins utter failure to allege entire elements of each claim.
Perhaps sensing this is a losing argument, Mr. Kimberlin claims that he
should have been granted leniency as a pro se. First, there is a real question
whether this policynot found in any statute or written ruleshould apply to Mr.
Kimberlin.

Unlike most pro se litigants, Mr. Kimberlin is an extremely

experienced litigator, with more experience in court than many fully licensed
attorneys. Mr. Walker has been practicing for over a decade and hasnt spent a
tenth as much time in a courtroom as Mr. Kimberlin. Mr. Kimberlin even bragged
to Appellee Frey that I have filed over a hundred lawsuits and another one will be
no sweat for me,7 and this boast is probably conservative. As noted by Judge
Titus in another case, filed nearly simultaneously in the District of Maryland:
[Kimberlin] is no stranger to the processes of this Court. Following
his conviction in the United States District Court for the Southern
District of Indiana for possession of a firearm not registered to him,
manufacture of a firearm, maliciously damaging by explosion the
property of an entity receiving federal financial assistance, and
damaging property of a business used in and effecting interstate
commerce, which was affirmed in United States v. Kimberlin, 805
Patrick Frey, Brett Kimberlin Threatens to Sue Me; UPDATED with Second EMail from Kimberlin, PATTERICOS PONTIFICATIONS, October 10, 2010 (available
at http://patterico.com/ 2010/10/11/brett-kimberlin-threatens-to-sue-me/), visited
on April 26, 2015.
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F.2d 210 (1986), he commenced numerous cases in this Court against

the United States Parole Commission, in Brett C. Kimberlin v.
Department of Justice and U.S. Parole Commission, Case No. 8:98cv-00730-AW; Brett Kimberlin v. United States Parole Commission,
et al., Case No. 8:97-cv-03829-AW; Brett C. Kimberlin v. United
States Parole Commission, Case No. 8:97-cv-02066-AW; Brett C.
Kimberlin v. U.S. Parole Commission, et al., Case No. 8:97-cv-01687AW, and Brett C. Kimberlin v. United States Parole Commission, Case
No. 8:97-cv-00431-AW, apparently in relation to his efforts to be
paroled from his conviction affirmed by the 7th Circuit in 1986.
Following his release on parole, he also brought an action in this
Court which was treated as an effort to overturn his Indiana conviction
under 28 U.S.C. 2255. His petition was denied, and the denial was
affirmed by the 4th Circuit, Brett C. Kimberlin v. Warden, Case No.
8:04-cv-02881-AW. Finally, he has been involved in litigation
concerning his personal bankruptcy in this Court, Brett Coleman
Kimberlin v. USA v. In Re: Brett Coleman Kimberlin v. James Turner,
Case No. 8:98-cv-03586-AW and Brett Kimberlin v. US Trustee, Case
No. 8:98-cv-00490-AW. Recently, he brought another action in this
Court against numerous Defendants alleging that they had been
engaged in a RICO conspiracy, a case which remains pending of this
date. Brett Kimberlin v. National Bloggers Club, et al., Case No. 8:13cv-03059-PWG.
Kimberlin v. KimberlinUnmasked, No. RWT-13-2580 (D. Md., Feb. 28, 2014).
That covers only Mr. Kimberlins experience in one court. The idea that he should
be treated as some doe-eyed babe in the woods who doesnt know what he is doing
in court simply makes no sense. The rule of liberal construction is a matter of
federal common law, and it should recognize that the Appellant should be treated
as an exception to this judge-made rule.

Even if the rule of liberal construction should be applied to Mr. Kimberlin, it

is not the panacea that he hopes it is. As stated in Green v. Beck, No. 12-7279 (4th
Cir. August 20, 2013):8
Although a pro se litigants pleadings must be liberally construed,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), the complaint must
contain sufficient facts to raise a right to relief above the speculative
level and to state a claim to relief that is plausible on its face. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
The court below found that Mr. Kimberlin had failed to state a claim to relief that
is plausible on its face. (ECF No. 263, at *3) In doing so, Judge Hazel cited
exactly the same passage in Twombly. Thus, even assuming there was no liberal
construction of the complaint, it would, at worst, be a harmless error. What Mr.
Kimberlin wants is not liberal construction but for the court to have hallucinated
factual allegations that arent in the Second Amended Complaint. Under Beaudett
v. City of Hampton, this is forbidden. 775 F.2d 1274, 1278 (4 th Cir. 1985) (liberal
construction does not require those courts to conjure up questions never squarely
presented to them. District judges are not mind readers). For instance, there
wasnt even a breath of a claim that he was injured in a way recognized under 18
U.S.C. 1964(c). Was the court supposed to pretend Mr. Kimberlin said he had
been so injured and assume facts not even alleged to exist?

Likewise, Mr.

Green v. Beck is an unpublished disposition, but 4TH CIR. local rule 32.1 states
that while citation of such opinions are disfavored they can be cited when no
published opinion would serve as well.
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8

Kimberlin didnt claim any kind of invidious animus, relation to a federal election
or attempt to obstruct the operations of a federal court as required by 42 U.S.C.
1985. From what words should such elements have been conjured?
This extremely experienced pro se litigant didnt lose because Judge Hazel
didnt read his Second Amended Complaint with sufficient breadth.

He lost

because large chunks of what he needed to allege were simply missing. Therefore,
even if this Court had jurisdiction, any appeal would be futile.
III.
MR. KIMBERLIN HAS ADMITTED THAT HIS COMPLAINT LACKED
EVIDENTIARY BASIS, PROVIDING AN ADDITIONAL JUSTIFICATION
FOR DISMISSAL
Finally, in his mislabeled Lead Brief Mr. Kimberlin makes a rather
stunning admission, stating that one of the questions presented on appeal is
II.

Whether the District Court erred in dismissing two counts of

the Complaint under F.R. Cv. P. 12(b)(6) [sic] prior to discovery
that would have provided the evidentiary basis for the counts.

Appellants Lead Brief, p. 1 (Doc. 22). By so writing, Mr. Kimberlin has admitted
that his Second Amended Complaint violated Fed. R. Civ. P. 11(b)(3) which states
that by presenting that filing to the court, he was representing that the factual
contentions have evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further investigation or
discovery[.] This Court would look through his Second Amended Complaint in
vain for a single instance of Mr. Kimberlin identifying any of his factual claims as
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being uncertain. Mr. Kimberlin repeatedly claimed to know of alleged events that
if they occurred at allwould have happened in private and yet demonstrated no
uncertainty in making those allegations of fact.
For instance, in 193 of the Second Amended Complaint, Mr. Kimberlin
claims the following about the National Bloggers Clubs finances: [t]hose
donations, in excess of $10,000, were funneled by various means in interstate
commerce to a bank account controlled by Defendant Ali Akbar, and laundered for
his own purposes, without any accounting[.] Yet in the same paragraph, Mr.
Kimberlin states that Defendant Akbar refused all requests made to him and the
National Bloggers Club for an accounting of the funds he received and disbursed
from his false narratives about Plaintiff. The first passage indicated that Mr.
Kimberlin knew with certainty exactly how these donations were handled, but the
second indicated that any suggestion that he knew how the money was allegedly
funneled is false. The Second Amended Complaint is littered with allegations that
would lead a skeptical reader to at least wonder how does he know these things?
What is his source of information? In this one slip, Mr. Kimberlin has admitted
what the Appellees have said for some time: he simply makes up what he believes
or hopes to be the truth (or whatever he thinks he must allege to get to discovery)
and labels his inventions as facts.

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Indeed, this admission places this case squarely within the rule enunciated in
Johnson v. American Towers, LCC, No. 13-1872 (4th Cir. 2015). In Johnson, this
Court found that allegations of a speculative nature were insufficient for motion
to dismiss purposes, because a fishing expedition to determine if there is any
factual basis for asserting claims against any Defendants... is not enough. Id. at
*26. Mr. Kimberlins confession that he does not yet have an evidentiary basis
for his claims transforms his complaint into a similarly improper fishing
expedition. He has filed his case first, and hopes to find evidence to support it later
the exact opposite of the process envisioned by Rule 11.
This blatant violation of Rule 11 would justify dismissal of the entire claim. 9
Thus in the process of claiming that the district court got it wrong, Mr. Kimberlin
has proven more than ever that it got it right.

This is in addition to other improprieties by Mr. Kimberlin in the district court,

such as when he admitted to forging a summons and then pled for mercy based on
his pro se status (ECF No. 102, see also ECF No. 124); when he submitted filings
in violation of a Case Management Order (ECF No. 168); when he refused to serve
filings on Defendants (ECF No. 26, 166 and 254); and when he refused to provide
a proper signature block (ECF No. 26). All this is in addition to Mr. Kimberlin
maintaining this suit even after the entirety of it was barred by principles of res
judicata following a loss in Maryland state court. (ECF No. 241). The truth is the
district court has been extremely tolerant of Mr. Kimberlins conduct (although
several requests for sanctions remain outstanding), yet he dares come to this Court
seeking even more leniency.
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9

IV.
MR. KIMBERLIN FAILED TO PROVIDE ALL OF THE INFORMATION
REQUIRED FOR HIS INFORMAL BRIEF, MERITING DISMISSAL
Rather than a Lead Brief Mr. Kimberlin was required to file an Informal
Brief in line with 4TH CIR. local rule 32.1. This rule states, in relevant part that
The informal brief may be submitted on a form provided by the clerk
and shall provide the specific information required by the form. The
parties need not limit their briefs solely to the form.
(Emphasis added). Perhaps fearful that he might undermine his claim that he is an
ignorant pro se entitled to liberal construction of his Second Amended Complaint,
Mr. Kimberlin failed to list any of his prior litigation before this Court, including
most notably when he sued its judges, Kimberlin v. the Judges of the Fourth
Circuit Court of Appeals, No. 99-6744 (4th Cir. 1999). Mr. Kimberlins failure to
obey these rules provides an additional reason to deny this appeal.
CONCLUSION
In Citizen K, the authorized biography of Mr. Kimberlin, Mark Singer
described the Appellants approach to litigation as follows: There could be no
mistaking [Brett Kimberlins] fundamental jurisprudential strategy: Sue the
bastards; then sue them more; then some more. Mark Singer, CITIZEN K: THE
DEEPLY WEIRD AMERICAN JOURNEY
isnt to win.

OF

BRETT KIMBERLIN 183 (1996). His point

Rather it is to waste his critics time and treasure fighting his

frivolous litigation, including his frivolous appeals. This Court does not have
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jurisdiction and, even if it did, the court below made no error. Indeed, Mr.
Kimberlin has admitted before this Court that his entire lawsuit was filed in bad
faith and in violation of Fed. R. Civ. P. 11(b)(3). This appeal should be dismissed
and, upon further briefing, Mr. Kimberlin should be sanctioned for this frivolous
appeal of a bad faith lawsuit under Fed. R. App. P. 38.

Friday, May 22, 2015

Respectfully submitted,

Aaron J. Walker, Esq.

Va Bar# 48882
[redacted]
Manassas, Virginia 20109
[redacted]
AaronJW72@gmail.com

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