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ECF 118

ECF 118

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Published by himself2462
RICO Madness
RICO Madness

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Published by: himself2462 on Apr 01, 2014
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04/07/2014

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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. )
DEFENDANT DB CAPITOL STRATEGIES, PLLC
S OPPOSITION TO PLAINTIFF
S MOTION TO FILE SECOND AMENDED COMPLAINT
Comes now, Defendant DB Capitol Strategies, PLLC (hereinafter
!
DBCS
"
), by and through counsel, hereby opposes Plaintiff Brett Kimberlin
#
s (hereinafter
!
Plaintiff 
"
) Motion to File Amended Complaint for the reasons stated herein. On March 7, 2014, Plaintiff filed his Motion to File Second Amended Complaint, in which he seeks to join three additional defendants and alleges additional claims of false light invasion of privacy, interference with business relationships, interference with prospective advantage, conspiracy, and battery.
See
Pl.
#
s Mot. to File Second Am. Compl. at ¶ 5, ECF No. 100-1. Plaintiff 
#
s Motion to File Second Amended Complaint (hereinafter
!
Motion to Amend
"
) should  be denied for two reasons. First, further amendment would be wholly futile because the proposed amendments fail to cure deficiencies in his previous amendment and would not withstand a motion to dismiss. Second, it would result in undue prejudice to DBCS.
PRELIMINARY MATTER 
 Before addressing the substance of DBCS
#
s Opposition, DBCS, through its sole member Dan Backer, filed its (Consent) Emergency Motion for Extension of Time to Respond to Plaintiff 
#
s Motion to
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!
Amend (ECF No. 100) on March 28, 2014 (hereinafter
!
(Consent) Emergency Motion
"
). ECF No. 117. Undersigned counsel was emergently admitted to the hospital on Thursday, March 27, 2014 and was unable to file an Opposition on DBCS
#
 behalf by the agreed upon deadline of March 28, 2014. While this Court has not yet ruled upon this (Consent) Emergency Motion, the agreed upon deadline between Plaintiff and DBCS for DBCS
#
Opposition is March 31, 2014. Thus, DBCS files this Opposition in accordance with that agreement while awaiting a ruling from this Court.
BACKGROUND
The First Amended Complaint (hereinafter
!
FAC
"
) is 50 pages long and contains 214 paragraphs. Pl.
#
s Am. Compl., ECF No. 2. Thirteen defendants have filed Motions to Dismiss as a result of the FAC. ECF Nos. 5, 8, 11, 16, 41, 50, 83 and 87. On February 21, 2014, this Court allowed Plaintiff to seek leave to amend his FAC. Letter Order, ECF No. 88. In doing so, this Court advised Plaintiff that this would be his last opportunity to amend, and that failure to comply with Local Rule 103.6 would result in Plaintiff 
#
s Motion to Amend being denied by the Clerk.
 Id.
 at 5. Plaintiff filed his Motion to Amend on March 7, 2014 and attached copies of his proposed Second Amended Complaint (hereinafter
!
SAC
"
). The SAC, instead of clarifying the allegations of the FAC, exacerbates both the redundancy and convolution of the FAC. The SAC is 82 pages and 285 paragraphs long, names three new defendants, and adds entirely new theories of the case, unsupported statements alleged as facts, and causes of action not present in the FAC. Further, Plaintiff does little to remove
!
redundant, immaterial, impertinent, or scandalous matter 
"
from the text, as had been ordered by this Court.
See
Case Management Order 
 
at ¶ B.12, ECF No. 97. Indeed, Plaintiff 
#
s SAC contains multiple  paragraphs which are immaterial and irrelevant to his alleged causes of action against the defendants.
See,
for example, Plaintiff 
#
s SAC, at ¶¶ 33-37.
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#
Additionally, the SAC fails to comply with the requirements of Local Rule 103.6(c), which Plaintiff was expressly told to follow by this Court.
See
 Letter Order, ECF No. 88, at 5. L.R. 103.6(c) requires that one copy contain lined-through, stricken material (or, alternatively enclosed in brackets), while newly included material is required to be underlined or in bold-faced type. In addition to the failures articulated below, Plaintiff 
#
s blatant disregard for the requirements of Local Rule 103.6 are well-briefed  by the Motions in Opposition filed by the other defendants in this matter.
See
 Def. Walker 
#
s Opposition to Pl.
#
s Mot. to File Second Am. Compl. at 2-5, ECF No. 115; Def. Hoge
#
s Opposition to Pl.
#
s Mot. to File Second Am. Compl. at 1-4, ECF No. 114; Mem. of Defs. Malkin and Twitchy in Opposition to Pl.
#
s Mot. to File Second Am. Compl. at 2-3, ECF No. 111. This Court explicitly directed Plaintiff to adhere to the strictures of Local Rule 103.6 in submitting his proposed amended pleading. Letter Order, ECF No. 88, at 5. The purpose of Rule 103.6
#
s redline requirement will have been wholly upended if each defendant is required to go through both the 50-page FAC and the 82-page SAC in order to ascertain what has been added and/or removed. The Rule places the burden on the movant to clearly indicate the changes being sought in the amendment and, here, Plaintiff failed to meet this burden.
ARGUMENT
 Rule 15(a) calls for amendment where
!
 justice requires
"
, but an amendment should be denied when the actions of the plaintiff demonstrate the following:
!
undue delay, bad faith, dilatory motive[], repeated failure to cure deficiencies by amendments previously allowed, and undue prejudice to the opposing party
"
.
 Foman v. Davis,
371
 
U.S. 178, 182 (1962);
 see Bennett v. Damascus Cmty. Bank 
, 2006 Md. Cir. Ct. LEXIS 14, *10 (Md. Cir. Ct. April 6, 2006). Additionally, "leave to amend need not be given" under Rule 15 if it would be futile to do so; where, for example
!
a complaint, as amended, is subject to dismissal."
 Dep't of Fair Empl. & Hous. v. Law Sch. Admission Council Inc.
, 2013 U.S. Dist. LEXIS
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