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BRETT KIMBERLIN,

Plaintiff,

v.

NATIONAL BLOGGERS CLUB,

et al..

Defendants

"

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UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

GREENBELT DIVISION

Case No. 13-CV-03059-PWG

DEFENDANT ROGE'S MOTION TO DISMISS UNSERVED DEFENDANTS

Comes Now Defendant William Roge and pursuant to Fed. R. Civ. P. 4(m) files this

Motion to Dismiss Unserved Defendants. In support of his motion Mr. Roge states as

follows:

SUMMARY

1. Plaintiff filed his original Complaint (ECF No.1) on 15 October, 2013, and his

Amended Complaint (ECF No.2) on 17 October, only two days later. This motion is filed

on the 124th day following the filing of the Amended Complaint. 16 of the 21 Defendants

named in the caption of the Amended Complaint have been served or have effectively

waived service of process. Plaintiff has failed to properly serve three of the remaining five

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Defendants, and, upon information and belief, does not know the identities of the

remaining two anonymous Defendants or where they might be found to be served.

2. Fed. R. Civ. P. 4(m) states

If a defendant is not served within 120 days after the complaint is filed,

the court-on motion or on its own after notice to the plaintiff-must

dismiss the action without prejudice against that defendant or order that

service be made within a specified time. But if the plaintiff shows good

cause for the failure, the court must extend the time for service for an

appropriate period.

Plaintiff has not only failed to show a good cause for his failure to serve the unserved

Defendants, he also has demonstrated bad faith in his efforts at service. The Court should

not grant Plaintiff any more time for service. Instead, the Court should dismiss the

instant lawsuit against the five unserved Defendants so that the suit may proceed without

further delay. As Mr. Roge has noted in numerous previous filings, additional delays in

bringing the instant lawsuit to a conclusion are not in the interest of justice or the interest

of judicial economy. Furthermore, it is in Mr. Roge's best interest for the instant lawsuit

to be terminated as soon as possible.

PLAINTIFF HAS FAILED TO PROPERLY SERVE BREITBART.COM

3. As noted in Mr. Roge's Motion for Amended Report on Status of Service

2

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6. Furthermore, as noted in the Motion for Amended Report, Plaintiff filed two

different versions of the same Certified Mail green card for Mr. Akbar in exhibits to

motions filed in the related Maryland lawsuit2, calling into question the authenticity of the

copy of that card proffered as an exhibit in his Status Report. Plaintiff has not denied

either that his proffered exhibit was altered or that the actual green itself has been

altered. Alteration of the green card compromises its value as evidence if it is ever

presented to the Court as required by Fed R. Civ. P. 4(1).

7. Given Plaintiffs failure to properly serve Mr. Akbar after more than 120 days

and given the disingenuous nature of Plaintiffs report to the Court with respect to service

on Mr. Akbar, the instant lawsuit should be dismissed against that Defendant.

PLAINTIFF HAS FAILED TO SERVE ANONYMOUS DEFENDANT "ACE OF SPADES"

8. It is obvious that Plaintiff does not know the identity of the person or person(s)

blogging under the pseudonym Ace of Spade ("Ace"). This is demonstrated by Plaintiffs

recent seeking of third-party subpoenas for information that might lead to Ace's identity.

Plaintiffs egregious delay in identifying this Defendant should not be permitted to stall

the progress of the instant lawsuit. Given Plaintiffs lack of service on Ace after over 120

days, the instant lawsuit should be dismissed against that Defendant.

2Kimberlin v. Walher, et al., Case No. 380966V (Md. Cir.Ct. Mont.Co.).

4

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PLAINTIFF HAS FAILED TO SERVE ANOjl,'YMOUS DEFENDANT "KIMBERLIN UNMASKED"

9. Plaintiff has been struggling to learn the identity of the person or persons behind

the anonymous blog Kimberlin Unmaslled since at least May, 2013.:1 Plaintiff has

obtained a third-party subpoena in a copyright lawsuit.J aimed at developing information

related to the identity of Kimberlin Unmasked. On information and belief, Plaintiff has

failed in his efforts to identifY Kimberlin Unmasked, and, as of 17 February, 2014, no

service of process has been effected in the copyright lawsuit or the instant case.

10. Given that Plaintiff has not been able to identify and serve Kimberlin

Unmasked after months of searching and over 120 days elapsed time since the Amended

Complaint was filed, the instant lawsuit should be dismissed against that Defendant.

CONCLUSION

It is in Mr. Roge's interest for the instant lawsuit to be disposed of as quickly as

3During cross examination in May, 2013, in a peace order case, Hage v. Kimberlin ,Case

No. 1S00058388 (Md. Cir.Ct. Carr. Co 2013), one of the questions Plaintiff asked Mr. Roge

was whether he knew the identity of Kimberlin Unmasked. Mr. Roge answered truthfully

that he did not.

IKimberlin v. Kimberlin Unmasked, Case No. 13-CV-02580 (D. Md.) was filed on 5

September, 2013. On 17 October, 2103, Judge Titus granted an order allowing an

extension of time until 14 February, 2014, for Plaintiff to serve Kimberlin Unmasked in

the copyright matter. See Exhibit A. On information and belief, Kimberlin Unmasked

has not been served as of 17 February, 2014.

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possible. As noted in Mr. Hoge's Motion to Dismiss (ECF NO.5), Plaintiff has failed to

state a claim upon which relief can be based. That fatal error applies not only to

Plaintiffs allegations aimed as Mr. Hoge but also against any other possible Defendant.

Even if Plaintiff were to eventually serve the as yet unserved Defendants, his case would

have no viable chance of surviving their motions to dismiss. Therefore, allowing Plaintiff

additional time to serve (or, in most cases, find and serve) additional Defendants is not in

the interest ofjustice. Furthermore, keeping such a frivolous lawsuit alive is not in the

Court's interest in judicial economy.

WHEREFORE,Mr. Hoge asks this Honorable Court to ORDER

1. That the instant lawsuit be DISMISSEDwith respect to the following Defendants:

a. Breitbart.com,

b. National Bloggers Club,

c. Ali Akbar

d. Ace of Spades, and

e. Kimberlin Unmasked; and

2. Such other relief as the Court may deem just and proper.

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Date: 18 February, 2014 Respectfully submitted,

William John Joseph Roge, pro se

20 Ridge Road

Westminster, Maryland 21157

(410) 596-2854

[email protected]

Verification

J1J IlL;

haJftv U~,)__(print name of notary public)

NOTARY PUBLIC

My Commission expires on: S - dS - L'C

Date:

I, William John Joseph Roge, III, state under penalty of perjury that the foregoing

information is true and correct and that all exhibits attached are true and correct copies of

the originals

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mailto:[email protected]:[email protected]


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Certificate of Service

On this 18th day of February, 2014, I, William John Joseph Hoge, III, served copied of thisMotion to Dismiss Unserved Defendants on the following persons by U. S. Mail or email as

shown:

Brett Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817

Michael Smith, Esq., for Michelle Malkin and non-party Twitchy at [email protected]

Mark Bailen, Esq., for Erick Erickson, Redstate, Simon & Schuster, Glen Beck,

MercuryRadio Arts, The Blaze, and James O'Keefe at [email protected]

Caitlin Parry Contestable, Esq., for DB Capitol Strategies at

cai [email protected]

Linda S. Mericle, Esq., for The Franklin Center at [email protected] Coleman, Esq., for John Patrick Frey and Mandy Nagy at [email protected]

Aaron Walker, Esq., at [email protected]

BreitbarLcom at 10connor@breitbarLcom and larry@breitbarLcom

Ace of Spades at [email protected]

Lee Stranahan at [email protected]

Robert Stacy McCain at [email protected]

Ali Akbar for himself and the National Bloggers Club at [email protected]

Kimberlin Unmasked at [email protected]

William Jo n Joseph Hoge, pro se

20 Ridge Road

Westminster, Maryland 21157

(410) 596-2854

[email protected]

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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EXHIBIT A

Order Granting Plaintiff Extension of Time to Serve Kimberlin Unmasked

Case No. 13-CV-02580 (D. Md.)

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Case 8:13-cv-02580-RWT Document 6 Filed 10/17/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRETT KIMBERLIN

Plaintiff

v

ANONYMOUS BLOGGER UNMASKED

Defendant

Civil Action No. RWT-13-2580

CORRECTED ORDER

The Court having considered Plaintiffs Motion for Extension of Time to Serve

Defendant, it is this 17th day of October, 2013, by the United States District Court for the

District of Maryland, hereby ORDERED that Plaintiffs Motion for Extension of Time is

GRANTED IN PART and Plaintiff is given until February 14, 2014 to effect service on

Defendant.

/s/

ROGER W. TITUS

UNITED STATES DISTRICT JUDGE

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ECF 68 Redacted

Documents

Transcript of ECF 68 Redacted