UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

BRETT KIMBERLIN, Plaintiff, v. NATIONAL BLOGGERS CLUB, Et. al. Defendants.

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Case No. PWG 13 3059

DEFENDANT DB CAPITOL STRATEGIES, PLLCS REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS AMENDED COMPLAINT UNDER RULE 12(b)(6) FOR FAILURE TO STATE A CLAIM INTRODUCTION Comes now, Defendant DB Capitol Strategies, PLLC (hereinafter DBCS), by and through counsel, hereby requests that this Court grant, for the reasons stated herein, DBCSs Motion to Dismiss Amended Complaint Under Rule 12(b)(6) for Failure to State a Claim and for the other reasons and relief requested in DBCSs Motion to Dismiss. Plaintiffs Response to DBCSs Motion to Dismiss (hereinafter Response) relies on allegations not stated in the First Amended Complaint (hereinafter Amended Complaint). These allegations, raised for the first time in the Response, are unsupported by any actual evidence. As Plaintiff failed to plead a sufficient factual basis in the Amended Complaint, DBCSs Motion to Dismiss should be granted. I. Preliminary Matter As a preliminary matter, DBCS wishes to address the Declaration of Brett Kimberlin included in Plaintiffs Response as Exhibit F and referenced throughout the body of his Response. Specific requirements are mandated in 28 U.S.C. 1746 in order for the unsworn declaration to be admissible in

court. 28 U.S.C. 1746. The declaration must include, in substantially the following form: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. 28 U.S.C. 1746(2) (1976). The declaration must reflect that the declarant is aware that he or she is under penalty of perjury. See In re McGuire 450 BR 68, 71 (BC DC NJ 2011). Courts have refused to admit declarations in support of motions where the above language was not included. In re McGuire, at 71; Gotlin v. Lederman, 616 F. Supp. 2d 376, 388-389 (ED NY 2009). The declaration in McGuire read: I. [sic] Mark McGuire, pursuant to 28 U.S.C. 1746, hereby verify the foregoing statements are true and correct to the best of my knowledge and belief. In re McGuire, at 73. The court refused to consider Mr. McGuires declaration because it was not made under penalty of perjury, and therefore did not meet the requirements of the statute. Id. Similarly, in Gotlin, the court rejected a witnesss declaration because [t]here is no statement that [the witness] is subject to perjury for any falsities, no reference to United States law, and no language that conveys that the statement is true and correct. It simply states that [the witness] swears and is therefore insufficient under 1746. Gotlin 616 F. Supp. 2d at 389. Here, Plaintiffs declaration is similar to the declarations rejected by the courts in McGuire and Gotlin. Response, Exhibit F. Plaintiff, like Mr. McGuire, asserts that the contents of the declaration are true and correct, but nowhere does he assert that the contents were made under penalty of perjury. Id. Both courts made clear that a declaration must meet the statutory requirements in order to be admissible as a matter of law. In re McGuire, at 71; Gotlin, at 388-389; Response, Exhibit F. Moreover, to the extent that Plaintiff seeks to introduce additional facts and evidence into this matter through his Declaration, such actions are improper and should not be considered. The facts at issue are those that appear in Plaintiffs Amended Complaint and not those that only appear in his Response and its accompanying exhibits. As 2

the fundamental requirements of the statute are not met and Plaintiffs use of the Declaration in his Response to DBCSs Motion to Dismiss is improper, DBCS respectfully requests that this Court refuse to consider the contents of Plaintiffs Declaration. ARGUMENT II. The Response erroneously relies on allegations not brought forth in the Amended Complaint When considering a motion to dismiss pursuant to Rule 12(b)(6), a court can only consider factual allegations contained within the four corners of the complaint. Fed. R. Civ. P. 12(d); Mannie v. Potter, 326 F. Supp 880, 882 (N.D. Ill. 2004) (quoting In re Natl Indus. Chem. Co. v. Steege, 1998 U.S. Dist. LEXIS 19591, No. 98 C 4801 (N.D. Ill. 1998)); Vince v. Rock County, 2009 U.S. Dist. LEXIS 115245 (W.D. Wis. 2009); Hill v. Trustees of Ind. Univ., 537 F.2d 248, 251 (7th Cir. 1976). In Vince, plaintiff, a confidential informant, alleged that defendants violated his constitutional rights by placing him in the general population of the Rock County Jail. Vince, at 1. The court granted the defendants motion to dismiss pursuant to Rule 12(b)(6) because plaintiffs complaint failed to allege that defendants disregarded known risks to plaintiffs safety. Id., at 8-9. The court refused to consider a letter written by one of the defendants. Id. The letter, which suggested that the defendant knew officials would ignore warnings regarding plaintiffs status as a confidential informant, was not included in the complaint and thus would not be considered by the court. Id., at 9. Here, Plaintiffs Response relies on numerous allegations and exhibits not included in the Amended Complaint. Rather than arguing how the facts alleged in the Amended Complaint are sufficient to survive the motion to dismiss, Plaintiff has improperly used the Response to introduce a string of new 3

allegations in an attempt to salvage his suit. The allegations and exhibits should be disregarded as they are not included in the four corners of the Amended Complaint. To clearly articulate the new assertions in Plaintiffs Response, DBCS respectfully directs the Courts attention to Exhibit A, which outlines the new allegations articulated for the first time in Plaintiffs Response. Exhibit A shows each new fact alleged in the Response and is organized by allegation. These new assertions correspond, in order, with the Response. III. The allegations in the Response are unsupported by the evidence and are nothing more than the-defendant-unlawfully-harmed-me accusations The Motion to Dismiss should be granted because, as with the Amended Complaint, the Response fails to provide sufficient facts to support Plaintiffs claims. As previously stated in DBCSs Motion to Dismiss, the pleading standard set forth in the Federal Rules of Civil Procedure demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Fed. R. Civ. P. 8; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A. Plaintiffs Allegations of RICO Violations Are Insufficient to Support Claim.

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). 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.

Plaintiffs Response does not present any facts from which a reasonable inference could be drawn that DBCSs conduct meets the elements listed above. As further discussed below, Plaintiff has failed to properly plead a RICO violation. First, Plaintiff claims that the fact that DBCS represented Mr. Walker in two1 civil suits and the allegation that DBCS raised funds 2 to support those suits is, in itself, evidence of a RICO violation. Response, at 14. This facially illogical argument is of precisely the kind that should fail to survive a Motion to Dismiss. Plaintiff fails to show how Mr. Backers representation of Mr. Walker and any fundraising undertaken on behalf of that representation are evidence of a RICO violation. See Response, at 14. He merely states that to claim otherwise is to sanitize the many predicate acts committed not only by those in the Enterprise, but by Dan Backer and DBCS themselves. Response, at 14. This statement is a label and conclusion that is insufficient to support a RICO claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Second, Plaintiff attempts to utilize his personal assumptions as fact to support his claim: [i]n fact, their main goal of the [RICO scheme] was to drive Plaintiff out of business and intimidate him from exercising his First Amendment right to redress. Response, at 17. Plaintiff provides no evidence to support this accusation. See Response, at 17. He goes on to cite case law in an attempt to support his

Plaintiff asserts throughout his Response that DBCS represented Mr. Walker in three lawsuits. This is incorrect. Rather, Mr. Backer represented Mr. Walker in two lawsuits, one in Maryland federal court and one in Prince William County, Virginia. The Prince William County, Virginia matter was originally filed pro se by Mr. Walker. Mr. Backer took over Mr. Walkers representation after the matter was already proceeding.
1

The Maryland federal court matter was filed after a Maryland state court entered an Order that prohibited Mr. Walker from blogging. After this matter was filed but before the case was heard, the Order was overturned as being an unconstitutional infringement on Mr. Walkers speech, and the complaint filed in Maryland federal court was amended to include the non-profits Justice Through Music and Velvet Revolution in the case.
2

The fundraising efforts alleged were conducted by RightSolutions, a 501(c)(3), and not DBCS.

assumption. Response, at 17. However, the cited portion of the case is irrelevant because it merely defines property rights in relation to extortion schemes. At issue here is whether Plaintiffs allegations meet pleading standards, and they do not. Northeast Womens Ctr. v. McMonagle, 868 F.2d 1342, 1350; Response, at 17. Further, Plaintiff fails to demonstrate that the case law cited and his assumption regarding the main goal of the alleged RICO scheme is sufficient to state a claim. See Response, at 17. Plaintiff, again, rests on assumptions and newly elucidated allegations rather than properly pled facts as he attempts to state a claim for a RICO violation in his discussion of Mr. Backers representation of Mr. Walker in two lawsuits. See Response, at 19. Plaintiff argues that the lawsuits were filed solely for the purpose of causing economic harm to [the nonprofits associated with Plaintiff], and . . . to extort them into firing Plaintiff . . . ., but he fails to articulate factual support for these statements. Response, at 19. Instead, he attempts to use evidence of settlement negotiations as evidence of extortion. Response, at 20, 21. Plaintiff alleges that DBCS published false information on the Bloggers Defense Fund website and that this supports his claim of an alleged RICO scheme. See Response, at 23, 24. However, Plaintiff has offered no proof that the published information is false. See Response, at 23, 24. Such accusations are not fact and are the type of the-defendant-unlawfully-harmed-me accusation[s] that Twombly held are insufficient to state a claim upon which relief can be granted. Ashcroft, at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

B.

Plaintiffs Allegations of 42 U.S.C. 1985(3) Are Insufficient to Support Claim. 6

A claim asserted under 42 U.S.C. 1985(3) requires (1) a conspiracy; (2) for the purpose of depriving, directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws; (3) an overt act in furtherance of the object of the conspiracy; and (4) that the plaintiff (a) was injured in his person or property, or (b) was deprived of having and exercising any right or privilege of a United States citizen. Simmons v. Baker, 842 F. Supp. 883, 889-890 (E.D. Va. 1994). Plaintiff merely repeats the same accusations he attempted to use in the Amended Complaint to show a claim for a RICO violation. Response, at 32-34. Plaintiffs attempts to use evidence of settlement negotiations as evidence of intimidation and extortion are unreasonable. Response, at 33. Plaintiff, again, assumes the purpose of Mr. Backers representation of Mr. Walker in the various lawsuits (and accompanying discovery requests) was to intimidate and deprive Plaintiff of his constitutional rights. Response, at 33, 34. However, Plaintiff offers no substantive facts or evidence to support these assumptions. See Response, at 33, 34. Plaintiffs failure to plead the requisite facts as required by 42 U.S.C. 1985(3) means his claim is, again, based on unfounded assumptions. As such statements are the type of the-defendant-unlawfully-harmed-me accusation[s] that Twombly held are insufficient to state a claim upon which relief can be granted, DBCSs Motion to Dismiss should be granted. Ashcroft, at 678 (quoting Bell Atl. Corp., at 555). C. Plaintiffs Factual Allegations Fail to Support a Defamation Claim.

To assert a defamation claim, a plaintiff must show that: (1) the defendant made a defamatory statement regarding the plaintiff to a third person; (2) that statement was false; (3) the defendant was legally at fault in making the statement; and (4) the plaintiff suffered harm thereby. S. Volkswagen, Inc. v. Centrix Fin., LLC, 357 F. Supp. 2d 837 (D. Md. 2005). If a plaintiff is a public figure, he must also 7

allege sufficient facts to show actual malice. Dobkin v. Johns Hopkins Univ., 1996 U.S. Dist. LEXIS 6445, 45-46 (D. Md. 1996). Once again, Plaintiff relies upon the publications on the Bloggers Defense Fund website and asserts that these posts are false in support of his defamation claim. Response, at 37. He has, however, failed to show that the statements were false and, as such, has failed to properly plead a claim of defamation. Further, Plaintiff provides no evidence of actual malice. See Response, at 36-43. He has also failed to articulate factual allegations to support his unfounded conclusion that DBCS was legally at fault for the utterance of any such statements. Additionally, Plaintiff attempts to use settlement negotiations as evidence of wrongdoing. Response, at 38. Mr. Backer, in representing Mr. Walker, sent the spoliation letter in anticipation of discovery since the matter could not be settled. The use of spoliation letters in litigation is commonplace and the use of one does not demonstrate any wrongdoing by DBCS. Again, the plaintiff is merely alleging the-defendant-unlawfully-harmed-me accusation[s] that do not permit recovery. Ashcroft, at 678 (quoting Bell Atl. Corp., at 555). D. Allegations of False Light Invasion of Privacy Are Insufficient to Support a Claim.

To properly allege a false light invasion of privacy claim a plaintiff must allege: (1) that the defendant gave publicity to a matter that places the plaintiff before the public in a false light; (2) that a reasonable person would find that the false light in which the other person was placed highly offensive; and (3) that the defendant had knowledge of or acted with reckless disregard as to the falsity of the publicized matter and the false light in which the defendant placed the plaintiff. Mazer v. Safeway, Inc., 398 F. Supp. 2d 412 (D. Md. 2005). Plaintiff offers no facts or evidence to support his contention that the statements he alleges were published by DBCS are false. See Response, at 44-46. Plaintiff charges DBCS with disproving these 8

statements by conducting sufficient research, yet fails to provide the fruits of such research himself. Response, at 46. Other than Plaintiffs assertion that such statements are false, he has not provided any facts to support this contention. He further fails to plead facts that demonstrate that the statements allegedly uttered by DBCS were, even if false, made with knowledge of their falsity. Mere accusations are not enough to sustain a cause of action and, as such, DBCSs Motion to Dismiss should be granted. Ashcroft, at 678 (quoting Bell Atl. Corp., at 555). E. Plaintiffs Allegations of Intentional Infliction of Emotional Distress Are Insufficient to Support a Claim.

To properly allege a claim for intentional infliction of emotional distress a plaintiff must show: (1) intentional or reckless conduct; (2) extreme and outrageous conduct; (3) a causal connection between the wrongful conduct and the emotional distress; (4) severe emotional distress. Mitchell v. Baltimore Sun Co., 883 A.2d 1008, 1024 (Md. Ct. Spec. App. 2005). Intentional infliction of emotional distress is to be used sparingly in Maryland and is meant only for truly outrageous conduct. Kentucky Fried Chicken Natl Mgmt. v. Weathersby, 607 A.2d 8, 11 (Md. 1992). Plaintiff fails to plead the necessary facts to support a claim for intentional infliction of emotional distress. See Response, at 47-50. Again, he accuses DBCS of publishing false information about, and filing malicious lawsuits against, Plaintiff. Response, at 49. Just as the allegations discussed above are unsupported by anything other than unfounded accusations, here plaintiff has again failed to plead substantive facts to support his claim for intentional infliction of emotional distress. Response, at 49, 50. As such statements are the type of the-defendant-unlawfully-harmed-me accusation[s] that

Twombly held are insufficient to state a claim upon which relief can be granted, DBCSs Motion to Dismiss should be granted. Ashcroft, at 678 (quoting Bell Atl. Corp., at 555). CONCLUSION 9

Plaintiff has failed to demonstrate that his allegations are sufficient to support a claim under the Federal Rules of Civil Procedure, Iqbal, and Twombly. The allegations are exactly the kind of labels, conclusions, and accusations that Iqbal and Twombly proclaim cannot survive a motion to dismiss. For the foregoing reasons, DBCS respectfully requests that this Court dismiss Plaintiffs Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and, further, to grant the other relief sought in its Motion to Dismiss.

Respectfully submitted, _/s/_______________________________ Caitlin Parry Contestable 717 King Street Ste 300 Alexandria, Virginia 22314 (727) 644-2957 (202) 478-0750 Caitlin@dbcapitolstrategies.com Bar No. 18826

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

BRETT KIMBERLIN, Plaintiff, v. NATIONAL BLOGGERS CLUB, Et. al. Defendants.

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Case No. PWG 13 3059

PROPOSED ORDER For the reasons set out in Defendant DB Capitol Strategies PLLCs Motion to Dismiss, it is this ____ day of _________, 2014, by the U.S. District Court for the District of Maryland, Greenbelt Division, ORDERED that the Motion to Dismiss be, and hereby is, GRANTED, and ORDERED that Plaintiff, Brett Kimberlin, be enjoined from initiating any further frivolous, meretricious litigation without the prior approval by a court appointed special master or the posting of a bond.

_________________________ Paul W. Grimm United States District Judge U.S. District Court for the District of Maryland, Greenbelt Division

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Defendant DB Capitol Strategies, PLLCs Reply to Plaintiffs Response to Defendants Motion to Dismiss Amended Complaint under Rule 12(b)(6) for Failure to State a Claim and Proposed Order was mailed, first-class, postage prepaid, this 14th day of February, 2014 to: Breitbart.com 149 South Barrington #735 Los Angeles, CA 90049 Twitchy 445C East Cheyenne Mount Blvd. #104 Colorado Springs, CO 80906

I FURTHER CERTIFY that a true and correct copy of Defendant DB Capitol Strategies, PLLCs Reply to Plaintiffs Response to Defendants Motion to Dismiss Amended Complaint under Rule 12(b)(6) for Failure to State a Claim and Proposed Order was served with consent, via electronic mail, this 14th day of February, 2014, to: National Bloggers Club Ali Akbar Aaron Walker William Hoge Robert Stacy McCain KimberlinUnmasked Brett Kimberlin Lee Stranahan Mandy Nagy Patrick Frey

I FURTHER CERTIFY that a true and correct copy of Defendant DB Capitol Strategies, PLLCs Reply to Plaintiffs Response to Defendants Motion to Dismiss Amended Complaint under Rule 12(b)(6) for Failure to State a Claim and Proposed Order was served via ECF on 14th day of February, 2014, to: Mark I Bailen Michael F Smith Eleanor M Lackman Benjamin D Light Linda S Mericle

DB Capitol Strtegies, PLLC has been unable to serve defendant Ace of Spades with any pleadings in this matter. The address listed below for this defendant is defective. Ace of Spades 3131 Homestead Road #3E Santa Clara, CA 95051

_/s/_______________________________ Caitlin Parry Contestable 717 King Street Ste 300 Alexandria, Virginia 22314 (727) 644-2957 (202) 478-0750 Caitlin@dbcapitolstrategies.com Bar No. 18826