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DBCS Motion to Dismiss With Exhibits (OCR)

DBCS Motion to Dismiss With Exhibits (OCR)

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Published by AaronWorthing
DB Capital Strategy's motion to dismiss Brett Kimberlin's RICO suit
DB Capital Strategy's motion to dismiss Brett Kimberlin's RICO suit

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Categories:Types, Business/Law
Published by: AaronWorthing on Dec 19, 2013
Copyright:Attribution Non-commercial

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12/21/2013

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION
BRETT KIMBERLIN, ) Plaintiff ) ) v. )
Case No. PWG 13 3059
 )  NATIONAL BLOGGERS CLUB, )
 Et. al.
 ) ) Defendants )
MOTION TO DISMISS AMENDED COMPLAINT UNDER RULE 12(b)(6) FOR FAILURE TO STATE A CLAIM
Comes now, Defendant DB Capitol Strategies PLLC (hereinafter
DBCS
), by and through counsel, hereby moves to dismiss Plaintiff Brett Kimberlin
s (hereinafter
Plaintiff 
) Amended Complaint for the reasons stated herein. Plaintiff 
s Amended Complaint fails to state a claim upon which relief can be granted and is not susceptible to adjudication.
Background
Last year, Judge Motz of this Court dismissed the matter of
Walker v. Kimberlin
, U.S. Dist. Court, Dist. of MD (Civil Case No. 8:12-cv-01852-JFM) (Order dated 11/28/12). That matter involved the instant plaintiff and one of the defendants in this matter, Aaron Walker (hereinafter
Walker 
). In dismissing the suit, Judge Motz stated,
I deem it unwise to intervene in the bitter political disputes  between the parties.
 
Walker v. Kimberlin
, U.S. Dist. Court, Dist. of MD (Civil Case No. 8:12-cv-01852-JFM) (Judge Motz Memorandum dated 11/28/12). The entirety of the involvement between DBCS and Plaintiff involves the representation of Walker in that case and a Prince William County
 
 2
Virginia Circuit Court case that was subsequently dismissed based on Judge Motz
s ruling.
Walker v.  Kimberlin
, U.S. Dist. Court, Dist. of Md., (Civil Case No. 8:12-cv-01852- JFM)
LEGAL STANDARD
Federal Rules of Procedure
 
Rule 12(b)(6) provides that a complaint may be dismissed
if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.
 
 Hishon v. King & Spalding 
, 467 U.S. 69, 73 (1984). A plaintiff 
s complaint must contain
“…
 a short and plain statement of a claim showing that the pleader is entitled to relief, in order to give a defendant fair notice of what the claim is and the grounds upon which it rest.
 
 Bell Atl. Corp. v. Twombly
, 550 U.S. 544, 555 (2007)
quoting 
 
Conley v. Gibson
, 355 U.S. 41, 47 (1957). Though the
Twombly
standard requires only a short and plain statement,
[f]actual allegations must be enough to raise a right to relief above the speculative level.
 
 Id 
.
 
A satisfactory claim for relief
demand[s] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.
 
 Ashcroft v. Iqbal 
, 556 U.S. 662, 678 (2009). A complaint is subject to dismissal under Rule 12(b)(6) if it merely
offers labels and conclusions or a formulaic recitation of the elements of a cause of action
 [or] if it tenders naked assertions devoid of further factual enhancement.
 
 Id 
.
ARGUMENT
 
I. Plaintiff 
s first claim for relief should be dismissed because Plaintiff failed to allege sufficient facts to show conduct, an enterprise, and racketeering activity under 18 U.S.C. §1962(c)-(d).
Plaintiff accuses DBCS of engaging in an ongoing conspiracy against him in violation of the Federal Racketeer Influenced and Corrupt Organizations Act (hereinafter
RICO
) 18 U.S.C. § 1961
 – 
1968. To state a claim under §1962(c), a plaintiff must allege,
“…
(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.
 
Sedima v. Imrex Co
., 473 U.S. 479, 496 (1985). As the Court discussed in
Sedima
, conduct is the
conducting or participating in the conduct of an enterprise
 
 3
through a pattern of racketeering activity.
 
 Id.
 Pursuant to 18 U.S.C. §1961, an enterprise is
any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. §1961. Racketeering activity is any act "chargeable" under several generically described state criminal laws, any act "indictable" under numerous specific federal criminal provisions, including mail and wire fraud, and any "offense" involving bankruptcy or securities fraud or drug-related activities that is "punishable" under federal law. 18 U.S.C. §1961(1). Finally, a pattern of racketeering requires
at least two acts of racketeering activity.
 18 U.S.C. §1961. Plaintiff 
s First Claim for Relief should be dismissed because the Amended Complaint fails to allege the required elements of conduct, an enterprise, racketeering activity or a pattern of racketeering activity as required by 18 U.S.C. 1962(c). The representation of Walker by DBCS in a lawsuit against Plaintiff is insufficient to implicate it in conduct comprising racketeering activity. DBCS wrote about the progress of its ligation against Plaintiff on one or more websites and raised money to support its pro  bono representation of Walker. (Amended Complaint, ¶¶76, 77, 78; Blogger 
s Defense Team,
about
  page, attached hereto as
Exhibit A
; Blogger 
s Defense Team,
narrative
 page, attached hereto as
Exhibit B
). The Amended Complaint fails to identify any conduct that would constitute
racketeering
 under the applicable standard, or conduct chargeable under a criminal statute, let alone a  pattern of such racketeering activty. These facts are insufficient to state a claim under 18 U.S.C. 1962(c), and, as such, Plaintiff 
s first claim should be dismissed.

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