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Appeal: 16-1500

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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 OPPOSITION TO APPELLANTS MOTION TO
RECONSIDER (DKT. NO. 63)
Appellee William J. J. Hoge III, by counsel Aaron J. Walker, Esq., hereby
files this Opposition to Appellants Motion to Reconsider (hereinafter the Motion
to Reconsider) (Dkt. No. 63).1 He states the following:
1.

Mr. Kimberlin seeks to overturn the out-of-hand rejection (Dkt. No.

62) of his Petition for Rehearing (Dkt. No. 61) because of tardiness by arguing that
rules such as deadlines should not apply to him. This follows Mr. Kimberlins
1

One might reasonably question Mr. Hoges standing to oppose Mr. Kimberlins
motion, given that this involves an appeal that Mr. Kimberlin has admitted that Mr.
Hoge is not a part of. See Appellants Reply Brief (Dkt. No. 48), p. 1, n. 1).
However, Mr. Kimberlin has also previously claimed that somehow his petition for
rehearing is a bar against Mr. Hoge receiving sanctions for his patently frivolous
appeal. See Appellants Response to Appellee Hoges Motion for Sanctions (Dkt.
No. 60), 3. Thus, Mr. Kimberlin is estopped from claiming that Mr. Hoge
doesnt have standing on all matters related to that petition.

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ordinary practice of seeking a motion to reconsider for virtually every decision that
doesnt go his way, followed by appeals ad nauseam. No court can ever say no
once to Mr. Kimberlin; instead, it must articulate nearly every refusal at least
twice. However, in his latest motion to reconsider Mr. Kimberlin offers no valid
excuse for his failure to obey a simple deadline.
2.

Mr. Kimberlin blames the Post Office for his failure to send his

petition for rehearing so it would arrive on time. Mr. Kimberlin includes a receipt
that indicates that something was sent (apparently by him) to Richmond by first
class mail on December 19, 2016. See Motion to Reconsider, p. 3. Even if we
assume he is telling the truth and that the shipment to Richmond was his filing with
this Courtand there is always reason to doubt the word of a convicted
perjurer2the failure of the Post Office to deliver the document on time is still Mr.
Kimberlins fault for two reasons.
3.

First, if Mr. Kimberlin were truly concerned about guaranteeing

timely arrival, he could have purchased speedier options from the USPS such as
priority mail or express mail.

Indeed, the USPS website specifically tells

customers that even with priority mail service, [t]he expected delivery date does

Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 490 n. 6 (D. Md. 1998)


2

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not come with a money-back guarantee.3 In other words, its an estimate, not a
promise. Likewise, Mr. Kimberlin could have driven the documents down to
Richmond and filed it himself or hired a courier service to do the sameif filing
on time mattered sufficiently to him. Clearly, Mr. Kimberlin did a cost/benefit
analysis and decided that his petition for a rehearing was not important enough to
spend the extra money and/or time needed to deliver the filing on time.
4.

Second, even if we pretend that Mr. Kimberlin couldnt be expected

to account for the entirely predictable delay in mail service close to Christmas, he
offers absolutely no explanation as to why he waited so long to send it. As Mr.
Kimberlin noted, this Courts order was handed down on December 7, 2016, and
Mr. Kimberlin waited until December 19 to file his petition for rehearing. Given
that Mr. Kimberlin was sent instantaneous ECF noticing of that order via email,4
there is no excuse for waiting twelve days before deciding to mail his petition
(which shouldnt have taken him more than two hours to write).
5.

In summary, Mr. Kimberlin has offered no explanation as to 1) why

he waited so long to send his petition or 2) why he didnt find a faster way to send
it other than by first class mail, six days before Christmas. Because he has failed
3

U.S. Post Office, Mailing and Shipping Services, available at


https://www.usps.com/ship/mail-shipping-services.htm (visited December 27,
2016).
4
Mr. Kimberlin is in the ECF system after being allowed to file electronically in
another case.
3

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to do so, he has offered this Court no excuse or justification for his failure to meet
his two week deadline, and this Court should therefore tell Mr. Kimberlin no, a
second time. It should refuse to reconsider its decision denying the petition out of
hand.

WHEREFORE, this Court should deny Mr. Kimberlin motion to reconsider his
petition for rehearing, and provide any other relief that is just and equitable.

Tuesday, December 27, 2016

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, Mr. Walker certifies that this document is
printed in 14 point typeface, with serifs, and, including footnotes, contains no more

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than 5,200 words. According to Microsoft Word, it contains approximately 752


words.

/s/ Aaron J. Walker

CERTIFICATE OF SERVICE
I certify that on December 27, 2016, all parties have been automatically served
through the electronic filing system by filing this through that system.
/s/ Aaron J. Walker