Case 8:13-cv-03059-GJH Document 414 Filed 08/30/17 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

BRETT KIMBERLIN
Civil Action No.: 8:13-CV-03059
Plaintiff, (GJH)

vs.

PATRICK FREY

Defendant.

OPPOSITION TO PLAINTIFFS MOTION TO UNSEAL RECORDS

USED IN SUMMARY JUDGMENT MOTION

Defendant Patrick Frey, through counsel undersigned, respectfully opposes Plaintiffs

Motion to Unseal Records Used in Summary Judgment Motion (ECF 410). In support of this

opposition, Plaintiff notes the following.

1. The Court has closed this case after granting summary judgment to the Defendant

(ECF 409), following which, on August 18, 2017, Mr. Kimberlin filed a Notice of

Appeal (ECF 411) .

2. "The filing of a notice of appeal is an event of jurisdictional significance it confers

jurisdiction on the court of appeals and divests the district court of its control over

those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc.

Co., 459 U.S. 56, 58 (1982), quoted in Brickwood Contractors, Inc. v. Datanet Eng'g,

Inc., 369 F.3d 385, 393 (4th Cir. 2004).

3. Although Fed. R. Civ. P. 62.1 provides for a procedure by which a district court can

grant certain extraordinary relief in such circumstances, Mr. Kimberlin has made no

showing that this Rule applies to his motion.

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4. Therefore, by virtue of the filing of the Notice of Appeal., the United States Circuit

Court for the Fourth Circuit (Fourth Circuit) is now charged with reviewing the

potential merits of an appeal and receiving a the record in this case, per ECF 413

(confirmation of Notice of Appeal.) See Fed. R. App. P. 3 and 28 U.S.C. 1294(1).

5. Even if this Court had the jurisdiction to address Plaintiffs motion directly, it would

have been appropriate to deny it, essentially for the reasons on which the Court relied

in granting Mr. Freys Motion to Seal (ECF 318, granted February 12, 2016 in

omnibus order ECF 344.) By virtue of the resolution of this matter, any public

interest in those documents is now reduced and the privacy interest therein is, if

anything, increased.

6. Put bluntly, after surviving ECF 1 through ECF 409 of this case and prevailing on all

counts as a matter of law, Mr. Freys legitimate interest in his privacy is even more

compelling now than it was when this court granted the Motion to Seal in the first

place, because the outcome demonstrates that there was never a legitimate reason for

Mr. Kimberlin to violate Mr. Freys privacy. Indeed, granting his motion would

confer an unearned and morally dubious reward on the unsuccessful litigant here,

who made it clear in his numerous public announcements (as set forth in previous

submissions by various defendants) that one of his lawfare goals in bringing this

action was to use discovery to get and publicize information from defendants that

would not be otherwise available to him.

7. Incidentally, when Mr. Kimberlin unsuccessfully sought interlocutory review by the

Fourth Circuit in this matter, among the orders regarding which he sought a writ was

this Courts granting of Mr. Kimberlins Motion to Seal. The Court of Appeals

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rejected his application in Kimberlin v. National Bloggers Club et al. No. 15-1412

(4th Cir. April 21, 2015) (dismissed per curiam June 16, 2015). That court, however,

now again possesses sole jurisdiction to address the issue if Mr. Kimberlin moves

before it again.

8. Indeed, the Fourth Circuit both possesses the unambiguous statutory jurisdiction to

address the record in its appeal, and is by judicial economy and the practicalities of its

appellate function the proper determinant of matters pertaining its own appellate

record going forward.

9. Alternatively should the Fourth Circuit conclude that the District of Maryland is the

proper subsidiary venue and forum to address the topics of Mr. Kimberlins motion,

that court possesses the power of remand under Rule 12.1 after an indicative ruling

from this court. Fed R. App. Pro. 12.1. No such procedure, however, has been

employed in this matter and absent the same, it is respectfully submitted that the sole

venue for the relief sought by Mr. Kimberlin is the Fourth Circuit.

WHEREFORE Mr. Frey requests that this Honorable Court deny Mr. Kimberlins

Motion to Unseal or, in the alternative, provide an indicative ruling under Rule 62.1 in

the negative for the same reasons for which it granted ECF 318 at ECF 344.

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Respectfully submitted,

___________/s/__________________ ______________/s/_______________
T. Bruce Godfrey #24596 Ronald D. Coleman (Pro Hac Vice)
JEZIC & MOYSE LLC ARCHER & GREINER
2730 University Blvd. West #604 A Professional Corporation
Silver Spring, MD 20906 Court Plaza South
240-292-7200 21 Main Street Suite 353
Facsimile: 240-292-7225 Hackensack, NJ 07601
godfrey@jezicfirm.com 201-342-6000
Counsel for Patrick Frey rcoleman@archerlaw.com
Counsel for Patrick Frey

CERTIFICATE OF ELECTRONIC FILING AND REGARDING WAIVER OF

MAILINGS

I, T. Bruce Godfrey, hereby certify that I have filed a copy of this document with the
United States District Court electronically and by so doing have provided compliant notice to
those parties who are registered with ECF through counsel as of this filing consistently with
Local Rule 102.1(c) on August 30, 2017. All parties, including pro se parties, have agreed to
accept service by electronic mail only and an electronic copy has been distributed to all parties.

/s/

_________________________________
T. Bruce Godfrey #24596