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Case 8:13-cv-02580-RWT Document 18 Filed 07/16/14 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION
BRETT KIMBERLIN,
Plaintiff,
,'\ 1,: _,?
v.
KIMBERLINUNMASKED
aka
LYNN THOMAS and
PETER MALONE,
Defendants.
VERIFIED MOTION FOR DEFAULT
Now comes Plaintiff Brett Kimberlin and moves this Court, pursuant to Federal
Rule of Civil Procedure 55(a), and 28 U.S.C. 1746, to issue a finding of default as to
Defendants Lynn Thomas and Peter G. Malone for failure to respond to the Amended
Complaint or otherwise plead or defend.
1. Defendants Thomas and Malone are a father/daughter team collectively
acting as an anonymous blogger called KimberlinUnmasked. Pursuant to an
Order from the Montgomery County Circuit Court, Plaintiff learned their
identities.
2. On March 30, 2014, Plaintiff secured new summons from the Clerk and
served the Defendants by Certified Mail, Return Receipt, Restricted Delivery.
Exhibit A. Amonth later, the envelopes were returned unclaimed. ld.
3. Defendants have actual notice of this Complaint but have intentionally
refused to accept service.
4. More than 120 days has passed since the Defendants have received actual
notice of the Complaint
Case 8:13-cv-02580-RWT Document 18 Filed 07/16/14 Page 2 of 4
5. FederaJ Rule of Civil Procedure 4(e)(1) allows service "followingstate law for
serving a summons in an action brought in courts of general jurisdiction in
the state where the district court is located or where service is made. II
Plaintiff has served Defendants at their last known address, which is listed on
their current AT&T Internet and phone billing records, which Plaintiff
received through a subpoena. Plaintiff has done this in good faith and made
many efforts to give actual notice including sending notice to emails used by
the Defendants such asl l@gmaiJ.com. the email used to
create the KimberlinUnmasked websites and access their
KimberlinUnmasked Twitter accounts. Plaintiff also informed their attorney
in the Maryland Circuit Court case of the Compliant and asked him to accept
service for the Defendants. Plaintiff has also served Defendants with notice of
the original Complaint on their Google Blogspot contact page.
6. Defendants have actual notice of the Complaint, have a copy of it, and are
aware that they have a right to respond to it In fact, Defendants even posted
the suit and selected paragraphs of the suit on their KimberlinUnmasked
blog. For example, on November 3 and 4, 2013, they posted paragraphs from
the suit along with commentary saying that Plaintiff"lied" in the suit
7. Defendants' KimberlinUnmasked website on Google was suspended in
December 2013 for violating numerous Terms ofService including the
copyright infringements alleged in the Complaint Google notified them of the
reasons for suspension. Incredibly, Defendants had used that website to
mock this copyright infringement suit
Case 8:13-cv-02580-RWT Document 18 Filed 07/16/14 Page 3 of 4
8. Defendants not only repeatedly posted about the Complaint on their blogs
prior to them being suspended, but they has also tweeted about it on two of
their Twitter accounts, @KimberlinUnmask and @BKUnmasked prior to
their suspension. Although Twitter suspended both accounts in December
for violations ofTerms of Service, Twitter records show that Defendants
tweeted about the copyright suit on many occasions.
9. Defendants have had actual notice of the claims set forth in the Complaint
since at least October 22, 2013, as evidenced by the above. While personal
service is tithe classic form of notice always adequate in any type of
proceeding," due process is satisfied when the attempted service is
"reasonably certain to inform those affected." Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306,315 (1950). By and through Plaintiffs
contacts and other means, and by the Defendants' own admissions that they
already have the Complaint, Defendants were clearly informed of the suit
Maryland National Bank v. Tanicorp 796 F.Supp. 188 (1992) (tlTo the extent
that Defendants maintain that service was improper, they have never denied
actually receiving notice' When there is actual notice, every technical
violation of the rule or failure of strict compliance may not invalidate the
service of process."')(citations omitted); Dominic v. Hess Oil v.1. Corp., 841
F.2d 513, 517 (3d Cir. 1988) (no prejudice to defendant under Rule 40)
where defendant had actual notice ofplaintiff's claim and facts on which it
was grounded); Spencer v. Steinman, 968 F. Supp.1011 (E.D. Pa. 1997)
(
Case 8:13-cv-02580-RWT Document 18 Filed 07/16/14 Page 4 of 4
(noting that actual notice "is crucial" to determining prejudice to the
defendant).
Wherefore, for all the above reasons, this Court should issue a finding of default
against Defendants for failing to respond to the
R
plaint after having actual notice.
Declaration Under 28 USC 1746
I declare, under penalty of perjury, that the above is true and correct to the best
of my belief.
Certificate of Se
I sent a copy of this motion toll.....- I@email.comthis13thdayofJuly
2014.
,

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