by Paul Alan Levy
Readers of this blog may recall that Brett Kimberlin has filed a defamation action against two dozen bloggers and other defendants; Public Citizen is in the case for the limited purpose of defending the anonymity of one of the bloggers. Since that blog post, there have been a number of developments, including a decision by the trial judge to follow the time-honored tradition of dumping his most burdensome and least attractive case onto the docket of a newly-appointed judge.
Last week, Kimberlin served on the defense lawyers (but not the pro se defendants) a letter, which he said he was attempting to file under seal, asking Judge George Hazel to allow him to file a motion for a preliminary injunction compelling the defendants to remove from their various web sites the various statements over which he is suing, and barring four pro se defendants from making future negative statements about him. (The previous judge in the case, trying to cope with a large number of filing from pro se parties who plainly detest each other, imposed a pre-motion letter requirement reminiscent of the SDNY and EDNY). Judge Hazel denied the request and granted it in part – he refused to allow Kimberlin to seek a preliminary injunction over the repetition of statements alleged in the Second Amended Complaint, saying that preliminary relief could only be sought about statements post-dating the complaint. And even then the motion would have to be limited to four defendants identified in the letter-request (not including the anonymous blogger).
Kimberlin’s filing, and the judge’s response, raise a host of interesting issues. For one, the judge’s approach to the pre-Amended Complaint and post-Amended Complaint dichotomy strikes me as odd, because the purpose of a preliminary injunction is to protect against irreparable injury pending a decision on the merits. If post-complaint statements are not the subject of the litigation on the merits (Kimberlin having been instructed that his Second Amended Complaint would be the last permissible amendment), why is the judge in this case the right one to consider a preliminary injunction about those statements? Indeed, a defamation lawsuit over the statements could not be filed in the District of Maryland as a related case because there is no diversity—two of the pro se defendants live in Maryland.
Kimberlin’s Failed Expectations About the Impact of Suing
Kimberlin’s letter request explains that he expected the suit to induce the defendants to “remove . . . the defamatory content outlined in the complaint,” but that the defendants have uniformly refused any removal while the litigation continued. He goes on to explain the impact he had hoped his lawsuit would have: “I filed this suit because Defendants would not stop their attacks on my family and me. I hoped that the filing of the suit would cause Defendants to [rein] in their reprehensible conduct.” Kimberlin goes on to assert that not only have the criticisms continued, but that his children have been adversely affected by what their friends, and their friends’ parents, have learned about him as a result of the attacks, and he puts this forward as a basis for a preliminary injunction. He indicates that, for example, that other parents won’t let their children have sleepovers with his daughter.