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NO.

15-1412

IN THE UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

BRETT C. KIMBERLIN
PlaintiffAppellant
v.
NATIONAL BLOGGERS CLUB, ET AL.
DefendantsAppellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MARYLAND

INFORMAL RESPONSE BRIEF FOR WILLIAM HOGE AS


APPELLEE

William John Joseph Hoge, pro se


20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854

FIRST ISSUE FOR REVIEW


Did the District Court fail to follow the dictates of Haines v.
Kerner, 404 U.S. 519 (1972) and Gordan v. Keeke, 574 F.2d. 1147
(4th Cir. 1978) which require District Courts to liberally
construe pro se complaints?
Simply put, no.
Appellant received properly liberal treatment in the District
Court; the record shows that both Judge Grimm and Judge Hazel
allowed Appellant substantial leeway as the Plaintiff in this lawsuit.
However, liberal construction does not permit a court to allow a suit to
go forward when the plaintiff has abjectly failed to state a claim upon
which relief can be granted. As can be seen from Judge Hazels
Memorandum Opinion (ECF No. 263. passim), even the most favorable
reading of the Second Amended Complaint (ECF No. 135) failed to state
a claim with only one exception.
While Judge Hazels Order (ECF No. 264) grants almost all the
motions to dismiss, it leaves alive the one claim based upon 42 U.S.C.
1983 against Defendant Frey. The case is not closed. There is no
final decision. Given the status of the case in the District Court, this
Court does not yet have jurisdiction.

The courts of appeals shall have jurisdiction of appeals from


all final decisions of the district courts of the United States, (28 U.S.C.
1291) and the Supreme Court has held that a decision is not
ordinarily final unless it ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment. Catlin v. United
States, 324 U.S. 229, 233 (1945). Because there has been no final
decision by the District Court in the instant case, this Court lacks
jurisdiction under 1291, and this appeal should be dismissed.
While it is true that we pro se litigants should be allowed some
leeway in navigating the complexities of the Federal Rules of Civil
Procedure and the Federal Rules of Appellate Procedure, this Court
should not allow Appellant to file what amounts to an untimely
interlocutory appeal. There is nothing about Appellants appeal that is
so time sensitive that it cannot wait for the District Court to finish its
work. This appeal should be dismissed.

SECOND ISSUE FOR REVIEW


Did the District Court err by dismissing the Complaint under
Rule 12(b)(6)?

The District Court did not err.


Appellant asserts that the District Court applied a heightened
standard of review to his Complaint. That is untrue. As can be seen
from Judge Hazels Memorandum Opinion (ECF No. 263), Appellant
was held to the requirements of Fed. R. Civ. P. 8 and 9 and the level of
specificity established by Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Memorandum
Opinion, ECF No. 263 at 3, 8. Being held to those standards is not
grounds for appeal.
With the exception of the one 42 U.S.C. 1983 claim, Appellant
failed to offer non-conclusory allegations of the elements of any tort
with sufficient specificity to make a case.
[T]he price of entry, even to discovery, is for the plaintiff
to allege a factual predicate concrete enough to warrant
further proceedings, which may be costly and
burdensome. Conclusory allegations in a complaint, if
they stand alone, are a danger sign that the plaintiff is
engaged in a fishing expedition.

DM RESEARCH v. College of American Pathologists, 170 F.3d 53, 55


(1st Cir. 1999). A fishing expedition in not enough to establish a wellpleaded claim. Johnson v. American Towers, LCC, No. 13-1872 (4th
Cir. 2015) at *26. The District Court looked at the pleadings and
correctly found that Appellant failed, with the one exception, to make
well-pleaded allegations. ECF No. 263, passim.
It is telling that Appellant states he would have been able to
allege his case with proper specificity if he had been allowed to conduct
discovery. See Appellants Lead Brief at 6, 8. This amounts to an
admission that he truly was engaged in a fishing expedition in violation
of Fed. R. Civ. P. 11, sanctionable conduct providing yet another reason
for the lawsuit to have been dismissed.

RELIEF REQUESTED

WHEREFORE, Mr. Hoge requests that the Court DISMISS the


instant appeal and grant such other relief as the Court may find just
and proper.

Date: 22 May, 2015

Respectfully submitted,
William John Joseph Hoge, pro se
20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com
CERTIFICATE OF SERVICE

I certify that on the 22nd day of May, 2015, I served copies of this
brief on the following persons:
Brett Kimberlin by First Class U. S. Mail
All Counsels of Record by email (with permission)
All pro se Appellees by email (with permission)
William John Joseph Hoge
CERTIFICATE OF COMPLIANCE
I certify that the accompanying brief is printed in a 14-point
serif typeface and that it contains 890 words.

William John Joseph Hoge