Kimberin v. Kimberlinunmasked

Filing 12

MEMORANDUM OPINION. Signed by Judge Roger W Titus on 02/27/2014. (bas, Deputy Clerk)(c/m on 2/28/14 bca)

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

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*
***

MEMORANDUM OPINION
On September 5, 2013, the Plaintiff, Brett Kimberlin, filed a Complaint for damages for
copyright infringement in this Court naming as the Defendant “Anonymous Blogger
KimberlinUnmasked.” The Plaintiff did not provide the actual name of the Defendant, nor, of
course, did he provide an address or any other information necessary to make service upon the
Defendant. The Plaintiff did not make any effort to secure the processes of this Court through
the issuance of subpoenas or otherwise to identify the actual name of the Defendant sued by him.
On October 1, 2013, this Court entered an Order authorizing the issuance of service of process,
and reminding the Plaintiff that “the person effecting service of the summons and Complaint
must promptly notify the Court, through an affidavit, that he or she has served Defendant.”
ECF No. 2, p.1. On October 15, 2013, the Plaintiff moved for additional time to serve the
Defendant (ECF No. 4) and on October 17 this Court granted Plaintiff an extension of time until
February 14, 2014 to effect service of the Defendant. ECF No. 6.
No return of service has been filed with this Court, and the time for service of process
expired on February 14, 2014. On February 18, 2014, the Plaintiff filed a “Verified Motion To
Find That Defendant KimberlinUnmasked Has Been Served Under Federal Rule of Civil

Procedure 4(e)(1) and Maryland Rule of Civil Procdure 2-121.” ECF No. 7. The motion does
not indicate that service of process has been effected on the Defendant, nor does it seek
additional time to either identify the Defendant or to effect service on him or her. Instead,
Plaintiff seeks to have an order of this Court entered deeming that the anonymous Defendant has
been served. In the motion, he advises this Court that through related proceedings in the Circuit
Court for Montgomery County he has been able to obtain information from Google that the blog
spot

“KimberlinUnmasked”

was

created

by

an

individual

using

the

email

[e-mail], an address associated with Lynn Thomas of Streamwood,
Illinois. ECF No. 7, p. 2. The Plaintiff has made no effort to amend the Complaint to name Lynn
Thomas as the Defendant, nor did he provide any information as to the address of Lynn Thomas.
It is apparent from the pleadings in this case and in the Plaintiff’s most recent motion that
the identity of the person making postings on the KimberlinUnmasked blog spot is not known
and, while the person maintaining that blog spot may be aware of the action in this case, that
person has never been served nor identified in any respect whatsoever.
There is no authority for this Court to “deem” someone served when they have neither
been identified nor served, and all that is presented to the Court is an allegation that the person to
be served, still unidentified, is aware of it through blog postings.
The Plaintiff 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 F.2d 210
(1986), he commenced numerous cases in this Court against the United States Parole

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Commission, in Brett C. Kimberlin v. Department of Justice and U.S. Parole Commission,
Case No. 8:98-cv-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-01687-AW, 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. 8:13-cv-03059-PWG.
The Court was prepared to deny the Plaintiff’s motion to find that the unnamed
Defendant has been served when additional filings were made by Aaron J. Walker, who, as an
apparent amicus curiae, seeks to have the Court give leave for the Defendants to file
anonymously, for Mr. Walker, himself, to file a brief as amicus curiae, and, ultimately, to
dismiss the complaint. Mr. Walker is not a party to this case and, unless he is, indeed, the
anonymous defendant, he has no standing or ability to file a motion on behalf of a Defendant, the
identity of whom is still unknown to this Court. Interestingly, Mr. Walker has been engaged in

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previous

litigation

against

Mr.

Kimberlin

in

this

Court,

Walker v.

Kimberlin,

Case No. 8:12-cv-1852-JFM, a case which was dismissed in November of 2012.
If the Plaintiff wishes to use the processes of this Court to obtain a judgment against a
person, he is going to have to identify that person by one means or another and then effect
service of process on that individual. He has not done so and, accordingly, this Court will, by
separate Order, deny Plaintiff’s Verified Motion to Find That Defendant Has Been Served
(ECF No. 7), deny the motions filed by Aaron J. Walker (ECF Nos. 8, 9, and 11), and direct the
Plaintiff to show cause why this case should not be dismissed for failure to effect service of
process within 120 days as required by Rule 4(m) of the Federal Rules of Civil Procedure. A
separate Order follows.

Date: February 27, 2014

/s/
Roger W. Titus
United States District Judge

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