Crowdsourcing Justice: Help Get Brett Kimberlin Declared A Vexatious Litigant

Yesterday's victory — in which vile domestic terrorist and serial litigant Brett Kimberlin lost his bogus defamation claim against a group of bloggers — was sweet.

But it's not enough.

The directed verdict vindicated the First Amendment rights of the defendants.  But it's a belated and partial vindication, because Kimberlin succeeded in abusing the legal system to harass his opponents for a year, costing them time, money, and attention.  Kimberlin will undoubtedly continue to do this: he's doing it in federal court and through other state court methods.  He boasts openly that he will continue to abuse the system to harass his enemies.

The legal system isn't very good at kicking out frivolous or harassing cases early. Standard civil procedure allows only two main opportunities to terminate a case before trial: a motion to dismiss and a motion for summary judgment. A motion to dismiss asks only whether the complaint is legally sufficient (that is, wether its allegations if true show that the plaintiff is entitled to relief), and a motion for summary judgment asks only whether the plaintiff has any evidence to support his or her claim. I've explained before why those measures are inadequate. Some jurisdictions have anti-SLAPP statutes, but many jurisdictions don't, or have statutes that are woefully inadequate. Moreover, as of now there is no federal anti-SLAPP statute. Litigants who seek to file in forma pauperis — that is, without paying filing fees — face some early review of the merits of their cases, but a litigant like Kimberlin can get around that by paying the filing fee. The bottom line: the system allows people like Kimberlin to inflict significant burdens on free speech through malicious litigation.

But there is another way, one that hasn't been tried against Kimberlin as far as I know.

Many jurisdictions have rules allowing a judge to declare a party a "vexatious litigant" and limit their new lawsuits. Such orders, when issued, generally require the litigant to submit any proposed complaint to the court before filing it, and to make some showing that the case has merit. It's an effective barrier to serial litigation.

The standard for declaring someone a vexatious litigant varies from jurisdiction to jurisdiction. The standard for the United States District Court for the District of Maryland — where Kimberlin is currently vexing his critics with bogus claims — is representative:

Under the All Writs Act, 28 U.S.C. § 1651(a), this Court has the authority to issue a prefiling injunction against vexatious and repetitive litigants. See Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004). A litigant’s access to the courts may be limited in “exigent circumstances, such as a litigant’s continuous abuse of the judicial process by filing meritless and repetitive actions.” Id. at 817–18 (citing Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993)). A district court may issue a prefiling injunction to limit a litigant’s access after properly weighing the following factors:

(1) the party’s history of litigation, in particular whether [s]he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass; (3) the extent of the burden on the courts and other parties resulting from the party’s filings; and (4) the adequacy of alternative sanctions. Id. at 818 (citing Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).

Courts are understandably reluctant to limit access to the courts. Judges therefore require a very strong showing of vexatiousness before issuing one of these orders.

That's probably why nobody has tried this against Kimberlin yet: preparing a strong vexatious litigant motion is time-consuming and expensive. Individual litigants are motivated to get out of their particular cases; they aren't necessarily motivated to undertake the substantial work necessary to support such a motion.

That's why we have crowdsourcing.

I propose to ask for a team of volunteers to do the prep work on a meticulously documented motion to have Brett Kimberlin declared a vexatious litigant based upon his pattern of legal harassment. This should not be a half-assed job. It should thoroughly review the relevant law, supply admissible evidence to demonstrate his pattern of vexatiousness over the years in many courts and cases, and be written tightly and persuasively. The team can then make the final product available to any defendant in any of Kimberlin's cases. Ideally the team would provide modular analysis of relevant precedent so that defendants can plug the applicable discussion about the rules of their particular jurisdiction.

Here are some of the things you could do to help:

  • Research, exhaustively, the vexatious litigant standards and authorities in each state and federal jurisdiction in which Kimberlin operates or is likely to operate.  A strong vexatious litigant motion will thoroughly review the relevant cases and identify those that support pre-filing restrictions on serial harassers like Kimberlin.
  • Identify each case Kimberlin has filed in the last 35 years.  That will involve not just Google searches and PACER searches but docket searches in multiple states.
  • Pull records for each of those cases — including complaints, motions to dismiss or for summary judgment, Kimberlin's oppositions, and rulings — to demonstrate that  the cases were frivolous and malicious.  Because many of the records are not available online, this step will require boots on the ground near many state and federal courthouses.
  • Contact lawyers and litigants in those cases to find evidence of vexatiousness not in the court record — for instance, threatening communications and brags about being a serial litigant.  Also, determine the costs incurred by defendants in those cases.
  • Find other instances in which Kimberlin has threatened or bragged about vexatious litigation in print or in person.
  • Review and summarize the case records for the drafting team.
  • Draft and edit portions of the vexatious litigant motion.
  • Kick in a few bucks for the costs of pulling the court records.

The system is imperfect, but people who believe in free speech can combine efforts to make it a little better.  Will you help?  Drop a line to ken at popehat etc. Let's do this thing.

Last 5 posts by Ken White

Comments

  1. says

    A good one that seems not to be online is the time in 1987 that he sued a childrens home employee as retaliation.

    Brett saw a spring 1987ish US News and World Report issue that had a picture of a 17 year old cheerleader. He started calling her, sending her flowers, and writing letters. Executive Director Rev. Val J. Peter saw what was going on, and intervened to try to prevent the then 32-33 year old Kimberlin from contacting her. See page 216 of Mark Singer's Citizen K for more details.

  2. says

    Perhaps Mr. Kimberlin can ask Charles Carreon for his legal help in fighting this motion, as he (Carreon) is experienced at achieving complete and total victory over Internet lynch mobs such as the one you are secretly organizing here.

  3. Ivraatiems says

    This is a genuine question, not just posting for the sake of argument: Is it possible that an organized effort to get Mr. Kimberlin declared a vexatious litigant could be (ab)used by him to bolster his various claims that he's being oppressed/defamed/etc.? That is, could Mr. Kimberlin claim that a group of people are trying to circumvent the justice system and deny him his rights through gathering this evidence despite not being part of any formal legal action involving him?

  4. says

    Mr Lizard, preparing a legal document to sue someone, if based on actual facts and a legitimate interpretation of the law is not committing a crime against them, let alone lynching them.

    Furthermore, asking the public for help is not organizing a conspiracy in secret.

    If Brett Kimberlin stops launching groundless lawsuits against his victims, the document will likely never see the inside of a courtroom, and all the effort in preparing it will go to waste!

  5. says

    That is, could Mr. Kimberlin claim that a group of people are trying to circumvent the justice system and deny him his rights through gathering this evidence despite not being part of any formal legal action involving him?

    It being a free country, he could claim that, just as I could claim to be the rightful heir to the throne of France. He would however be wrong; preparing a lawsuit in no way circumvents the court system. Whatever power the document has is derived from the likely judgement that a court of law will make when the motion is presented for their consideration. In other words, Brett kimberlin need only explain why he keeps filing lawsuits that appear frivolous – a defense that shouldn't presumably be too difficult if he is indeed being wronged by the people he sues.

  6. Adam Steinbaugh says

    @Ivraatiems:

    Probably not. It's not defamatory to state a belief that Kimberlin could be declared a vexatious litigant based on his well-known litigation history.

    More to the point, there could be no damages for other torts unless such a motion were actually brought. If the motion were granted, that would lpreclude success on any abuse of process type of claim — if it could even be filed. Were such a motion to initially fail, a harassing lawsuit based on bringing the motion would present a new opportunity to bring it.

  7. says

    Vexatious litigants have previously tried to sue the judges and lawyers and opposing parties who had them declared vexatious. Courts have soundly rejected the efforts, and it's a reliable tell of super-vexatiousness that hardens the courts' hearts against them.

  8. says

    Mr Lizard, preparing a legal document to sue someone, if based on actual facts and a legitimate interpretation of the law is not committing a crime against them, let alone lynching them.

    Furthermore, asking the public for help is not organizing a conspiracy in secret.

    Cool. Thanks for the info, as I was truly unaware of all of your points. Given your helpful nature, I was wondering if you could aid me with another issue. I have this idea to help deal with hunger in impoverished nations: They could eat their babies. What do you think?

  9. Grace says

    "Kick in a few bucks for the costs of pulling the court records."

    Point me to the donate button.

    The domestic terrorist Brett Kimberlin must be made to stop engaging in lawfare, and the harassment of good and decent people. Enough already!

  10. Dan Weber says

    A wiki would be a great way to assemble the case information. Whether private or public is a strategic question for the team to answer.

  11. says

    The first step then would be to make a list of the states and judicial jurisdictions where BK has, or may have filed suits. Where has he lived over the past thirty years?

    Next, identify the researcher who lives closest to each jurisdiction, and assign tasks.

  12. Bob Brown says

    I'm semi-retired and have one working day off each week. Although I'm not a lawyer, I can, with coaching, do boots on the ground work at any courthouse in Georgia and possibly in surrounding states.

    Please let all of us know how to kick in those few bucks.

  13. mcinsand says

    Kimberlin already helped with this quote, right?

    >>Kimberlin tells me he’ll appeal, and that as far as the bloggers go there’ll be “endless lawsuits for the rest of their lives."

    He has thus stated intent to be a vexatious litigant… or am I showing how I am not an attorney?

  14. says

    Mr Lizard, having recalibrated my sarcasm detector, I apologize. My only excuse is that it has been a crappy week that has left me feeling besieged by idiots.

  15. EPWJ says

    Also what about compiling a cloud stored library of all the material, including stragegies, case histories, and legal forms for the State of Maryland and those within 1/2 a gas take of your average leased with 501c3 money Prius so anyone getting sued has the massive war chest already there – just need to get the key from Popehat?

  16. Kinsey says

    Warning: this is LONG and contains information probably already known to litigators. But for any non-litigator lawyers or non-lawyers who want to do state court docket searching I thought it might be helpful.

    I'm not a lawyer – I'm a law librarian. Of course, I can't do docket research while on the job–Courtlink, Westlaw, BloombergLaw, et al cost money. But I think I can provide some information about researching state court dockets, which is where I think the majority of Kimberlin's lawfare takes place.

    The biggest pain about state court research is that there is no state equivalent to PACER – no one stop, comprehensive database covering courts in all 50 states. That's because there a lot — like, very very many — state courts that don't make their dockets available online, or if they do they restrict acess to approved account holders. Some courts do offer online docket access, but you can't get the actual documents online. Some court websites have clunky, limited search engines. And so on.

    Access varies not just state by state, but county by county within states. In most states (I think – I've done zero research on this) the biggest, most populous counties tend to have a lot of court information online, including dockets and sometimes documents. As a general rule, the smaller counties have less online information because they have fewer resources and fewer funds, and their courts don't handle the volume of caseloads that the bigger counties do so fewer people are clamouring for online access. There are exceptions. Austin is the capitol of Texas, but Travis County dockets were not available online til pretty recently, 10+ years after Harris County (Houston) and Tarrant County (Dallas) had done it–the Travis County Clerk didn't want case information available on the web, so it wasn't.

    Some states offer state-wide docket searching, many don't. In some states 3rd party vendors offer state-wide docket searching (which, remember, will cover only those counties that make their case information available online.)

    So – in researching state courts you can either go through an online vendor like Westlaw, or Courtlink (a Lexis product) or BloombergLaw. Or you can go through smaller, specialized vendors that offer aggregate searching. (In Texas, iDocket offers access to a lot of the smaller counties that Westlaw et al don't have.) 3rd party vendors, of course, cost money and some don't allow you to use a credit card and pay as you go – you have to subscribe.

    Or you can search county by county within a state.

    Point is, state court docket searching is a PITA and time consuming and it's hit or miss — you can never be sure if you've done a comprehensive search. If comprehensive searching is even possible but that's an existential question.

    My favorite databases for aggregated searching are Courtlink and Bloomberglaw. (If you can search Courtlink you don't have to search Lexis. (I'm pretty sure. I think.)

    I made a document, years ago, with a table comparing state court coverage, side by side, of Westlaw, Courtlink, and Bloomberglaw. I thought I emailed it to myself today but I didn't – I'll do it tomorrow. I'm happy to send it to anyone who wants it – I haven't updated it in years. I keep meaning to but then I get distracted.

    If I were going to do a search for Kimberlin's state court litigation I would first look in Bloomberglaw and/or Courtink (I don't know offhand if they have the exact same coverage) for cases involving Kimberlin. I wouldn't restrict the search to Kimberlin as a plaintiff – I'm sure he's been a defendant in cases, and I'd want to know these jurisdictions as well as the jurisdictions where he's filed lawsuits himself.

    I'd then make a list of the states where I found suits.

    Having done this, I would theoretically have all the suits available online from those counties that are available through aggregated databases – does that make sense?

    But I'd think maybe I'd want to look in all the other counties of each state as well – the counties that were not covered by the aggregated databases I'd just looked in. This might not be as daunting as it sounds – if Kimberlin's activity has been limited to small states like Maryland, searching all the counties won't take all that long. It wouldn't be like searching all the California counties. (And actually, I think one of those vendors does have all California counties.)

    One more thing – Courtlink has a feature called Single Search – it costs $250 and it will search for dockets AND documents from all courts covered by Courtlink. If Courtlink state court coverage proved superior to Westlaw and Bloomberglaw, this might be the way to go.

    I'm happy to help in the effort in any way I can. If anyone has a Bloomberglaw, Courtlink, etc. account I can do the searches (I can provide you with proof of my real life identity so you'd have recourse if I used your account to run up $$$$$$$$$$ of unrelated usage. Which I would not.)

    OH – one more one more thing. I could probably do some docket searching next week when our Westlaw rep is in the office for free time and training. (Lexis doesn't include Courtlink in free time and training sessions. I don't even think they'll allow docket searching with Lexis on the free password.)

    And again – if you want my state court coverage document just let me know.

  17. Adam Steinbaugh says

  18. ConanOfCimmeria says

    The teeth if this dog must be pulled! My gold is yours for such a worthy fight. Just tell me how.

  19. Ken says

  20. says

    @BKWatch: any idea where and when that case was filed?

    @Adam I actually spent about an hour trying to find anything about this case because I thought it might be an effective way to expose Kimberlin's lawfare tactics. What I instead learned is I don't know what I'm doing here. I turned up nothing. However I'm still engaged and want to do what I can.

    In March 1987 (2 months after filing a $150k federal pro se RICO suit against a publisher because, Brett said, their porn wasn't good enough) – From Citzen K page 216:

    Kimberlin had come across an article in U.S. News & World Report about Boys Town, Nebraska[….] Almost eighty teenage girls resided at Boys Town, and a photograph of one of them, a seventeen-year-old cheerleader named Tiffany Perkins, accompanied the piece. Kimberlin wrote her a letter, and she soon wrote back. He wrote again and received another reply[…]

    After that, it says Kimberlin began calling her on the phone and once sent her flowers. Reverend Val J. Peter, executive director of Boys Town, saw one of the letters and reacted by reporting it to F.C.I. Oxford, the prison Kimberlin was then at. Kimberlin used James Turner (a guy on the outside who helped Kimberlin launder money and such) to send another letter but Peter caught this one too. Kimberlin told Singer his thought was, "Fuck it, I'm suing."

    The Reverend Peter was the sole defendant[….] In his complaint, he invoked the First, Fifth, and Fourteenth amendments, and he persuaded Tiffany Perkins to become a coplaintiff[….] The lawsuit prevailed through a series of dismissals, refilings, and appeals, but it finally became moot when Tiffany turned eighteen, left Boys Town, and moved back with her mother in Florida.

    Note that Singer sometimes changes names of minor girls when telling Kimberlin stories.

  21. Jerry says

    Courts are understandably reluctant to limit access to the courts. Judges therefore require a very strong showing of vexatiousness before issuing one of these orders.

    Fascinating how the courts draw the line: Blocking individuals from using the courts is done rarely and with great care. Blocking large segments of the population from using the courts – e.g., by enforcing mandatory arbitration clauses in contracts of adhesion for essential services – nah, that's fine.

    — Jerry :-(

  22. Kinsey says

    Adam: I'll send it to you this afternoon – Gmail has decided to stop sending me verification codes when I try to get in from my work computer.

    I really need to update the document. Maybe I'll start on it next week.

  23. Kinsey says

    Ken – Maryland's court records can be searched all at once online.

    http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp

    I searched Brett Kimberlin and got 22 cases in several different venues. Click on the cause number to see case details.

    http://mdcourts.gov/casesearch2/faq.html#casesearch – lists earliest dates of coverage for circuit courts. District court records go back to 89 for civil, 91 for criminal. But I'm sure his litigiousness started long before then, so a personal visit to courthouses might be fruitful.

    Being in Texas, I always assume that you can drive anywhere in a small state in an hour or two. This is stupid, I know.

  24. says

    Kinsey,
    In my counting, his litigiousness began in 1983 right after he was found guilty of the Speedway Bombings for the first time. My recollection (away from my shoddy notes I don't have with right now) is that he sued a witness and someone working on the prosecution against him. He's been at it on and off ever since.

    Note why I said above found guilty for the first time: he forced the courts to re-litigate the whole thing. Yep, still guilty as hell.

  25. Kinsey says

    I found no Kimberlin-filed lawsuits in Virginia Circuit Court, just the one Aaron Walker filed against him. Can't tell you how far back the records go – it's a county by county thing.

    I did find, however, that there's a shit ton of Kimberlins in Virginia.

    If and when I update the state court coverage document I will provide a link to the state's online case information database, if it has one, and I'll note whether or not state wide searching is available or if it's just county by county.

    Haven't searched district court yet.

  26. Kinsey says

    So I was thinking I'd ignore all the suits Kimberlin filed while in prison – I just assume (with no reason or evidence) that a judge would be less inclined to view such suits as vexatious – I think they'd err on the side of the prisoner.

    He filed a lot of them while in the can. One against Madeline Albright and one against Orin Hatch. I was perusing PACER on my firm's password so I didn't download anything – but I'd love to read the complaints.

  27. says

    I'm wondering the same thing. But until that comes, I think you can also donate to Bomber Sues Bloggers.

    Some of the defendants in the remaining federal RICO suit made a point of helping Kimberlin's victims and their reward has been multiple lawsuits and a torrent of harassment from Kimberlin and his supporters. Additionally their reward consists of having to front legal related costs and performing a lot of that labor themselves. Keep in mind that Kimberlin's conscious strategy appears to be to make it too expensive and laborious for bloggers to tell the truth about his crimes.

  28. says

    Shortly after being sentenced in 1981, Brett Kimberlin filed around December 1981 a $24 million federal lawsuit against a witness, Ronald Confer. The rest is less clear to me, but here's Citizen K p. 182-183:

    When nine months passed without [U.S. Attorney Sarah Evans] Barker's appointing a special prosecutor, he sued her as well, along with two dozen law enforcement officials (including William French Smith, the attorney general of the United States) and several witnesses (including Lynn Coleman and, for good measure, Confer again). There could be no mistaking his fundamental jurisprudential strategy: Sue the bastards; then sue them some more; then some more.

    I couldn't figure out what this case is. Then on page 185,

    In the fall of 1983, a staff member at MCC Chicago asked Kimberlin to prepare a list of cases in which he was either a plaintiff or an appellant, and there were more than twenty. […] Eventually, Kimberlin filed more than a hundred lawsuits and motions in the federal courts on his own behalf, and nearly that many for other convicts.

    I believe Singer expected his devastating biography to pretty much put an end to Brett's exploits. Ex ante, this would have been a reasonable expectation, but Brett Kimberlin turns out to be more special than people expect. Singer did not write the book in such a way as to make a vexatious litigant research project extremely easy. Searching the public internet, I can't find most of the cases he mentions and not even remotely close to 100. I consider the claim about Kimberlin doing legal work for other convicts to be sketchy because I'm not sure if Singer confirmed it with someone besides Kimberlin. In particular, I have a really hard time wrapping my head around the claim that Kimberlin earned six figures doing legal work for jailed mobsters.

  29. Auntie fraud says

    See if you can find out about VRUS vs zogby lawsuit…
    Bk bought boycott zogby.com and sued them

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