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IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
Brett Kimberlin,
Plaintiff-Appellant
v.

Case No. 16-1500

Hunton & Williams LLP, et. al

Defendants-Appellees
APPELLEE HOGES MOTION TO FOR SANCTIONS
Appellee William J. J. Hoge III, by counsel Aaron J. Walker, Esq., hereby
moves for sanctions against Mr. Kimberlin for a patently frivolous appeal. He
states the following:
1.

Federal Rule of Civil Procedure 38 states that if this Court finds that

an appeal is frivolous, it may award just damages which can include attorneys
fees. Gorenstein Enterprises v. Quality Care-USA, 874 F. 2d 431 (7th Cir. 1989).
2.

A strong argument can be made that this entire appeal was frivolous

for all parties, given that the affirmation of the lower courts decision was
unanimous and required only per curium treatment. However, the argument is
particularly strong for Mr. Hoge.
3.

As noted in his Informal Opposition Brief (Dkt. No. 44), p. 3, Mr.

Hoge won below was because the district court declined to exercise supplemental

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jurisdiction and Mr. Kimberlin made no effort to challenge that decision before this
Court:
Throughout the Appellants informal brief [Dkt. No. 36], there is not a
single word from the Appellant about the decision to decline
supplemental jurisdiction.
Accordingly, this appeal should be
dismissed or the decision below should be summarily affirmed, at
least in reference to Mr. Hoges victory. The Appellant evidently
thinks that there is nothing worth appealing in the decision below, in
relation to Mr. Hoge, and Mr. Hoge heartily agrees.
Later, Mr. Kimberlin admitted that Mr. Hoge was not part of the appeal (see
Appellants Reply Brief (Dkt. No. 48), p. 1, n. 1). However, at no point during the
appeal process did Mr. Kimberlin take any steps to remove Mr. Hoge from this
appeal, and he did not indicate that he was not pursuing an appeal against Mr.
Hoge in his opening brief. Indeed, the caption of this case lists Mr. Hoge as an
appellee to this day.
4.

This occurred despite Mr. Hoges writing to Mr. Kimberlin on May 3,

2015, asking that he be removed from the appealwith the threat that he would
seek sanctions, including attorneys fees, if Mr. Kimberlin did not. Exhibit B. So
having been warned by Mr. Hoge not to include him in the appeal, Mr. Kimberlin
kept Mr. Hoge in the appeal, never once indicating that Mr. Hoge was not part of
the appeal until after Mr. Hoge filed an opposition brief. There is not one single
word in the record in the district court or before this Court indicating affirmatively

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that Mr. Kimberlin was not seeking an appeal against Mr. Hoge until after Mr.
Hoge had filed an opposition.
5.

With Mr. Kimberlin having been warned about what the consequences

would be when seeking an inappropriate appeal, there is no good reason to spare

him of those consequences. Mr. Kimberlin inconvenienced Mr. Hoge and his
attorney, and they should be compensated for that inconvenience. Attached as
Exhibit C is the affidavit from undersigned counsel demonstrating why Mr.
Kimberlin should be required to pay Mr. Hoge at least $500.00. as attorneys fees,
as well as any other amounts this Court determines is appropriate to discourage this
kind of misconduct in the future.
6.

This appeal is the latest abuse of the courts by this serial litigant. It

shouldnt have been taken against anyone, especially not Mr. Hoge. Mr. Hoge
should not bear the costs of Mr. Kimberlins abuse of the courts and his failure to
remove Mr. Hoge from the appeal, and this Court should act to deter such abuse in
the future.

WHEREFORE, this Court find that Mr. Kimberlins appeal was frivolous, award
Mr. Hoge no less than $500 in just damages, and provide any other relief that is
just and equitable.

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Respectfully submitted,

/s/ Aaron J. Walker

Aaron J. Walker, Esq.
Attorney for William J. J. Hoge III
Va Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW1972@gmail.com

CERTIFICATE OF COMPLIANCE
In accordance with Local Rule 27(d)(1) and (2), Mr. Walker certifies that the
accompanying brief is printed in 14 point typeface, with serifs, and, including
footnotes, contains no more than 5,200 words. According to Microsoft Word, it
contains approximately 638 words.

/s/ Aaron J. Walker

CERTIFICATE OF SERVICE
I certify that on December 11, 2016, all parties have been automatically served
through the electronic filing system by filing this through that system.
/s/ Aaron J. Walker

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EXHIBIT A

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
Brett Kimberlin,
Plaintiff-Appellant
v.

Case No. 16-1500

Hunton & Williams LLP, et. al

Defendants-Appellees
DECLARATION OF WILLIAM HOGE III
1.

My name is William Hoge III, and I make these statements based

upon my own personal knowledge. I am a resident of Maryland. I am over 18

years of age and if called to do so, I am competent to testify that the contents of
this declaration are accurate and true.
2.

I hereby state that Exhibit B is a true and correct copy of a letter that I

sent to Brett Kimberlin on or about 3 May, 2016.

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I declare under penalty of perjury under the laws of the United States of
America that the forgoing is true and correct to the best of my knowledge.

Executed on 10 December, 2016 in

Westminster
(city)

s/ William Hoge III

(signature)

Maryland
(state/territory)

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EXHIBIT B

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EXHIBIT C

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
Brett Kimberlin,
Plaintiff-Appellant
v.

Case No. 16-1500

Hunton & Williams LLP, et. al

Defendants-Appellees
DECLARATION OF AARON J. WALKER, ESQ.
1.

My name is Aaron J. Walker, and I make these statements based upon

my own personal knowledge. I am a resident of Virginia and a member of the bar

in good standing in Virginia and Washington, D.C. I am also a member in good
standing of this Courts bar. I am over 18 years of age, and if called to do so, I am
competent to testify that the contents of this declaration are accurate and true.
2.

I am the attorney representing Mr. Hoge in this appeal. I hereby state

that I devoted over four hours of work to filing Mr. Hoges Informal Opposition
Brief (Dkt. No. 44), including time spent familiarizing myself with the intricacies
of this case. Furthermore, I spent more than an hour to writing and preparing the
instant motion for sanctions. Although I represented Mr. Hoge pro bono, my

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ordinary rate for this kind of work is $100 an hour. Thus for more than five hours
work, I ordinarily would have charged my client a minimum1 of $500.

I declare under penalty of perjury under the laws of the United States of
America that the forgoing is true and correct to the best of my knowledge.

Executed on December 10, 2016 in

Manassas
(city)

Virginia
(state/territory)

s/ Aaron J. Walker, Esq.

(signature)

I ordinarily round down my time when charging paying clients and I extend Mr.
Kimberlin the same courtesy here.
2