Professional Documents
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Sanctions (hereinafter the Opposition) (Dkt. No. 60), Mr. Kimberlin offers no
valid reason why sanctions should be denied.
2.
shouldnt find his appeal frivolous, especially with respect to Mr. Hoge. The fact
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is that Mr. Kimberlin kept Mr. Hoge in an appeal in which Mr. Kimberlin didnt
challenge a single element of the lower courts decision related to Mr. Hoges
dismissal. The correct course of action was for Mr. Kimberlin to have voluntarily
dismissed Mr. Hoge or at least announced in the body of his initial brief that he
was not seeking any appeal against Mr. Hoge. Instead, he let Mr. Hoge remain on
the hook for this appeal and be inconvenienced. In fact, that inconvenience was
likely Mr. Kimberlins goal.
4.
Third, Mr. Kimberlin claims that the fact Mr. Hoge was represented
pro bono prevents him from collecting attorneys fees. This assertion is incorrect.
As this Court stated in Brinn v. Tidewater Transportation Dist. Comm'n., 242 F.3d
227, 234-35 (4th Cir. 2001), courts have consistently held that entities
providing pro bono representation may receive attorneys fees where appropriate,
even though they did not expect payment from the client[.]
5.
Fourth, Mr. Kimberlin seems to believe that the fact he filed a motion
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dark about the fact that Mr. Hoge should not be part of the appeal until after Mr.
Hoge and his lawyer had been inconvenienced. By pretending that the petition for
a rehearing should be a procedural bar preventing Mr. Hoge from recovering, Mr.
Kimberlin attempted to perpetrate the same harm on Mr. Hoge a second time:
pretending that Mr. Hoge is part of an appeal he really isnt part of. The only way
to deter such conduct is sanctions.
6.
Finally, Mr. Kimberlin bizarrely and falsely goes after Mr. Hoges
counsel, making a number of unsubstantiated (and false) claims about the recent
case of Walker v. Kimberlin, et al. Case No. 398855-v (Mont. Co. Cir. Ct. 2016).
First, he claims that a jury found that undersigned counsel had committed the acts
described in Exhibit 1 to Mr. Kimberlins Petition for Rehearing (Dkt. No. 61).
However, Mr. Kimberlin doesnt include a copy of the actual jury questionnaire
which asked whether Mr. and Mrs. Kimberlin made knowingly false statements.
Thus, the jury didnt find that the statements were necessarily true; the jury could
have believed that the statements were false, but that undersigned counsel failed to
prove that the Defendants knew they were false.
7.
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which, of course, is not true either. This Court need only peruse its own records to
verify that undersigned counsel continues to be in good standing before this
Courtas he is with every court and bar association to which he has ever been
admitted.
8.
In short, Mr. Kimberlin has offered this Court no valid reason why he
should not be sanctioned for filing this frivolous appeal. Undersigned counsel also
notes in this verified reply that it took him more than an hour to write this reply, so
that the amount of attorneys fees that should be awarded should be increased by
$100, from $500 to $600.
WHEREFORE, this Court should find that Mr. Kimberlins appeal was frivolous,
award Mr. Hoge no less than $600 in just damages, and provide any other relief
that is just and equitable.
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Respectfully submitted,
VERIFICATION
I, Aaron Walker, declare under penalty of perjury under the laws of the
United States of America that the forgoing is true and correct to the best of my
knowledge and that all exhibits attached are true and correct copies of the
originals.
Dated:
12/27/16
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CERTIFICATE OF COMPLIANCE
In accordance with Local Rule 27, Mr. Walker certifies that that this
document is printed in 14 point typeface, with serifs, and, including footnotes,
contains no more than 2,600 words. According to Microsoft Word, it contains
approximately 781 words.
CERTIFICATE OF SERVICE
I certify that on December 27, 2016, all parties have been automatically served
through the electronic filing system by filing this through that system.
/s/ Aaron J. Walker