BRETT KIMBERLIN, IN THE CIRCUIT COURT Plaintiff, FOR MONTGOMERY COUNTY v. Case No. 403868V NATIONAL BLOGGERS CLUB, etal., Defendants. | MOTION TO DISMISS BY DEFENDANTS THE BLAZE INC., MERCURY RADIO ARTS, AND GLENN BECK FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO STATE A CLAIM COME NOW Defendants The Blaze Inc., Mercury Radio Arts, and Glenn Beck (“Movants”), by and through their undersigned counsel, and move to dismiss with prejudice the Complaint filed by Plaintiff Brett Kimberlin pursuant to Maryland Rule 2-322(a)(1) for lack of personal jurisdiction and Maryland Rule 2-322(b\(2) for failure to state a claim upon which relief can be granted. Movants also move this Court for an order awarding them their attomeys’ fees and costs. In support of their Motion, Movants refer to and incorporate the accompanying Memorandum of Law. WHEREFORE, Movants ask this Court to enter an order dismissing Kimberlin’s Complaint with prejudice, awarding Movants their attomeys’ fees and costs, and granting any additional relief as the Court deems just and proper. RECEIVED gu 31 2085 Clerk of the Circuit Court ‘Montgomery County, Md.Dated: New York, New York July 31, 2015 Respectfully submitted, COWAN DcBAETS ABRAITAMS & SHEPPARD, LLP ( By: CAPE Eleanor M. Lackman (pro hac vice) Scott J. Sholder (pro hac vice) 41 Madison Avenue, 34" Floor New York, New York 10010 Tel: (212) 974-7474 Fax: (212) 974-8474 ELackman@cdas.com SSholder@edas.com Attorneys for defendants The Blaze Ine., Mercury Radio Arts, and Glenn BeckBRETT KIMBERLIN, IN THE CIRCUIT COURT Plaintisf, : | FOR MONTGOMERY COUNTY NATIONAL BLOGGERS CLUB, et al., Defendants, CaseNo.: 403868V DEFENDANTS THE BLAZE INC., MERCURY RADIO ARTS, AND GLENN BECK’S: MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS. PLAINTIFF’S COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO STATE A CLAIMTABLE OF CONTENTS Page TABLE OF AUTHORITIES wenn ne sonnet PRELIMINARY STATEMENT 1 FACTUAL BACKGROUND 4 ARGUMENT connote 6 1 THIS COURT LACKS BOTH GENERAL AND SPECIFIC PERSONAL JURISDICTION OVER THE BLAZE DEFENDANTS wrsnsoon.6 IL A. The Blaze Defendants’ Online Presence Is Insufficient to Establish Personal Jurisdiction in Marylend .... B. This Court Cannot Exercise Personal Jurisdiction Over The Blaze Defendants Consistent With Due Process... KIMBERLIN’S CLAIMS AGAINST THE BLAZE DEFENDANTS ARE DEFAMATION CLAIMS IN DISGUISE; NONE IS LEGALLY OR FACTUALLY COGNIZABLE sre sl A. The Publication of Facts About Kimberlin’s Criminal Past and Alleged Current Criminal Activity Is Not “Outrageous” Conduct Sufficient to State a Claim for Intentional Infliction of Emotional Distress... B. Kimberlin’s Claim for False Light Invasion of Privacy Is Lacking in Legal Merit and Conflated with Defamation cc. . 1. The Blaze Defendants have not made any actionable false statements. : 2. Kimberlin does not set forth sufficient allegations to satisfy the “actual malice” state-of-mind requirement applicable to false light claims... . 18 3. Kimberlin has suffered no cognizable “false light” injury’ ......20 4. If Kimberlin was injured, the Blaze Defendants were not the cause. 22 C. Kimberlin’s Claim for Tortious Interference Fails Because He Pleads No Underlying \Wrongil Actor Injared Business Relationship soon sess 24D. Kimberlin Fails to State a Claim for Conspiracy to Commit State Law Torts Because His U ing Tort Claims Fail and Because He Does Not Plead The Existence of An Unlawful Agreement... 26 E. Kimberlin’s Claim for Punitive Damages Is Inappropriate Because “Punitive Damages” Is a Remedy, Not a Cause of Actios 28 F. This Court Should Impose Sanctions Against Kimberlin for Prosecuting Frivolous Claims Against The Blaze Defendants .....-en28 TL. KIMBERLIN’S COMPLAINT SEEKS TO INHIBIT FREEDOM OF THE PRESS AND THUS VIOLATES MARYLAND’S ANTI-SLAPP STATUTE. on _ CONCLUSIONTABLE OF AUTHORITIES Page(s) Cases Aileco Inc. v. Harry & Jeanette Weinberg Found, Inc 340 Md. 176, 665 A.2d 1038 (1995) 1-12, 21, 26,28 Allen v. Bethlehem Steel Corp. $47 A.2d 1105 (Ct. Spec. App. Md. 1988) 24 ALS Scan, Ine. v. Digital Serv. Consultants, Ine., 293 F.3d 707 (4th Cir. 2002).... Attorney Grievance Comm'n of Md. v. Noren, 293 Md. 611, 446 A.2d 423 (1982) BNY.KK, 312 Md. 135, 538 A.2d 1175 (1988) 13 Bogwell v, Peninsula Reg'l Med Ctr. 106 Md. App. 470, 665 A.2d 297 (1995). 1-12, 14,18, 20 Baron Fin. Corp. v. Natazon, 471 F. Supp. 24 535 (D. Ma, 2006)... od, 25, 26 Batson v. Shiflett, 325 Md. 684, 602 A.2d 1191 (1992) voor 2 Beckley Newspapers Corp. v. Hanks, 389 US. 81 (1967)... 19 Beil BCI Co. v. HRGM Corp., CIV. SFM-03-1357, 2004 WL 3222885 (D. Md. Aug. 6, 2004) 4 Beyond Sys., Inc. v. Realtime Gaming Holding Cc., 388 Md. 1, 878 A.2d 567 (2005) 6, 7,89 Beyond Sys., Inc. v. Kenmedy Western Univ... No. VICA DKC 2005-2446, 2006 WL 1554847 (2005) sen, Blanton v. Equitable Bank, Nat. Ass'n, 61 Md. App. 158, 485 A.2d 694 (1985). 29 Bond v. Messerman, 391 Ma. 706, 895 A.24 990 (2006) ..rnnn “ .10Capital-Gazerte Newspapers, Inc. v, Stack, 293 Md. 528, 445 A.2d 1038 (1982)... = 7 see 8, 20 Carter v, Aramark Sports & Entm't Servs. 153 Md. App. 210, 835 A.2d 262 (2003). Converge Servs. Grp., LLC v. Curran, 383 Md, 462, 860 A.2d 871 (2004) a snneemnnmnaneinnnnndy V1, 23 Cruz v, Latin News Impacto Newspaper, 627 N.Y.S.2d 388 (App. Div. Ist Dep't 1995) old Davis v. Passman, 442 U.S. 228 (1979). 28 Dobkin v. Johns Hopkins Univ., No. CIV. A. HAR 93-2228, 1996 WL 254860 (D. Md, Apr. 18, 1996). seemed Doe v. Chao, 540 U.S. 614 (2004).. 14 Fayay. Almaraz, 329 Md. 435, 620 A.2d 327 (1993) 9,10 Ferragamo v. Signet Bank/Maryland, No. CIV. A. WN-88-3333, 1992 WL 219826 (D. Md. Mar. 17, 1992)..... Fertel v. Davidson, No. CIV. CCB-13-2922, 2013 WL 6842890 (D. Md. Dec. 18, 2013). Figueiredo-Torres v. Nickel, 321 Md, 642, 584 A.2d 69 (1991)... Fa) Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992). . Furman v. Sheppard, 744 A.2d 583 (Md. Ct. Spec. App. 2000)... 17 Gallardo v. FedEx Kinko's Office & Print Servs., Inc., No. 08-CV-00392 (JFM), 2008 WL 2143011 (D. Md. May 12, 2008)........... 16 Garrison v, State of Louisiana, 379 U.S. 64 (1964). 20 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011).Ground Zero Museum Workshop v. Wilson, 813 F. Supp. 2d 678 (D. Md. 2011) ee . ponesne 4 Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) Sere seseeneess 12 Harte-Hanks Comm’ns, Inc. v. Connaughton, 491 US. 657 (1989) Hatley v. Taf, JFM-09-711, 2010 WL 4923831 (D. Md. Dec. 2, 2010). 1S, 18 Hill v, Brush Engineered Materials, Inc., 383 F. Supp. 2d 814 (D. Ma. 2005).. 27 Hoffinan . Stamper, 385 Ma. 1, 867 A.2d 276 (2005)... 26 Hyrehorovich v. Harbor Hosp. Ctr., Inc. 93 Ma. App. 772, 614 A.2d 1021 (1992). vennnnne 9 Hustler Magazine, Ine. v. Falwell, 485 US. 46 (1988)... BID Inlet Assocs. v. Harrison Inn Inlet, Inc., 32 Md. 254, 596 A.2d 1049 (1991)... Kerodin v, ServiceMagic, Inc., No. RWT 11CV2981, 2013 WL 951754 (D. Md. Mar. 11, 2013)... Kimberlin v, Nar'l Bloggers Club, ‘No. GIH-13-3059, 2015 WL 1242763 (D. Mé. Mar. 17, 2015)... 5 Kimberlin v. White, 7 F.3d 527 (6th Cir, 1993)... 11s Landover Assoc. v. Fabricated Steel, 35 Md. App. 673, 371 A.2d 1140, cert. denied, 281 Md. 740 (1977) wu. Layman v, Layman, 84 Md. App.183, 578 A.2d 314 (1990) 29 Lewis v. Park Plus, Ine., ‘No. 8:13-CV-01709-AW, 2013 WL 6713224 (D, Ma. Dee. 18, 2013). 10 Logan v. District of Columbia, 447 F. Supp. 1328 (D.D.C. 1978)... 221Macklin v. Robert Logan Assocs., 334 Md, 287, 639 A.2d 112 (1994) Marks v. Criminal Injuries Comp. Bd., 196 Md. App. 37, 7 A.3d 665 (2010) 19 MeCourry v. Town of Etkzon, No. WMN-12-1839, 2013 WL 5740679 (D. Md. Oct. 22, 2013), 27) MeKown v. Criser’s Sales and Serv., 48 Md. App. 739, 430 A.2d 91 (1981)... 6 Phillips v. Washington Magazine, Inc., 58 Md. App. 30, 472 A.2d 98 (1984)... 18 Piscatelli v, Van Smith, 197 Md. App. 23, 12 A.3d 164 (2011). 17 Polanco v. Fager, 886 F.2d 66 (4th Cir. 1989).... 17 RRC Northeast, LLC v. BAA Maryland, Inc., 413 Md. 638, 994 A.24 430 (2010), wll, 23 R Cleaning Impact, Inc. v. Red Robin Int'l, Inc., CIV. CCB-12-2368, 2013 WL 1726270 (D. Md. Apr. 19, 2013) 27 Rodrigues v. Clarke, 400 Ma. 39, 926 A.2d 736 (2007) .. 29 Rossaki v, NUS Corp., 1G Md. App. 11, 695 A.2d 203 (1997) nnn ee i Seymour v. A.S. Abell Co., 557 F. Supp. 951 (D. Md. 1983). wT Shabazz v. Bob Evan Farms, Inc., 163 Md. App. 602, 881 A.2d 1212 (2005). 1.28 Sirpal v. Fengrong Wang, CIV. WDQ-12-0365, 2012 WL 2880565 (D. Md. July 12, 2012)... 1 Smith v. Esquire, Inc. 494 F, Supp. 967 (D. Md. 1980) United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986) oulVollmar v. O.C. Seacrets, Ine. 831 F. Supp. 2d 862 (D. Md. 2011)... Walton v. Network Solutions, 221 Md. App. 656, 110 A.3d 756 (2015). 11 Winter v. Pinkins, No. JKB-14-2125, 2014 WL 5500393 (D. Md. Oct. 29, 2014). seerereeseennnananeseeseeeeee]Q, ET Wynberg v, Nat'l Enquirer, Inc., 564 F. Supp. 924 (C.D. Cal. 1982) cesses 21 Young v. Hartford Accident & Indem. Co., 303 Md, 182, 492 A.2d 1270 (1985) wssssesnnrennn seen evened Constitutions U.S. Consr. amend... 29, 30 Mb. DECL. oF RIGHTS Art. 10... Mb. DECL. OF RIGHTS Art. 13 Mb. DECL. OF RIGHTS Art. 40... Statutes Mad. Code Ann., Cts. & Jud. Proc. § 5-105... Md. Code Ann, Cts, & Jud. Proc. § 5-807(b) .. Ma. Code Ann., Cts, & Jud, Proc. § 6-103(b)G). Ma. Code Ann., Cts, & Jud. Proc. § 6-103(b)(4... Ma. R. 2-305 Ma. R. 2-322(6)(2).PRELIMINARY STATEMENT. In his Complaint filed April 15, 2015 (the “Complaint” or “Cpit."), plaintiff Brett Kimberlin (“Kimberlin”) tells a story of persecution at the hands of a team of bloggers — backed by a shadowy organization called “Team Themi whose primary existence allegedly is to “destroy progressive organizations” for purposes of political gain. Their mission, according to Kimberlin, is to target activists for “exercising their constitutional rights to free expression and freedom of assembly.” Kimberlin and his organization, Justice Through Music (sometimes referred to as Kimberlin’s “employer,” and which does not appear to be a party to this action) are purportedly among that group of activists and organizations that have fallen victim to the incredible scheme that Kimberlin describes in his Complaint. This is also not the first time Kimberlin has told this tale; the virtually identical claims in the Complaint were recently dismissed without prejudice by the United States District Court for the District of Maryland in conjunetion with that court's dismissal (with prejudice) of two spurious federal claims against the same defendants named in this action (the “Federal Action”) Over 60 pages of text and nearly 200 paragraphs, Kimberlin describes a series of published articles by various other individual defendant bloggers starting in the autumn of 2010, which Kimberlin claims defamed him. Kimberlin, who is well-known as the convicted perpetrator of the 1978 bombings in Speedway, Indiana, see, e.g., Kimberlin v. White, 7 F.3d 527 (6th Cir. 1993), as well as the person who made such claims as that he personally sold marijuana to Vice President Dan Quayle, see id. at 530-31, does not deny that any of these or other prior historical facts are true, Rather, the gravamen of 1Kimberlin's Complaint seems to be that he is upset thet defendants Walker, Frey, Nagy. and other bloggers allegedly conspired in late 2010 and throughout 2011 to publish articles claiming that Kimberlin engaged in or was otherwise involved in “swatting™ conservative bloggers. According to the Complaint, direct threats and court proceedings involving Kimberlin and some of the individual defendants eventually accompanied the blog posts, and matters appear to have escalated from there. ‘What this story truly appears to be about is a feud between two groups: Kimberlin and his associates, and a group called the “National Bloggers Clut NBC”). Defendants The Blaze Inc. (“The Blaze“), Mercury Radio Arts (“MRA”) and Glenn Beck (Mr. Beck”) (collectively, the “Blaze Defendants”) are not alleged to be members of NBC and indeed make no substantive appearance in Kimberlin’s story until paragraph 76 of the Complaint — as part of some press cbout Kimberlin that one or more of the Blaze Defendants gave on May 25, 2012. Then, almost as quickly as they arose in the story, the Blaze Defendants disappear almost entire'y after paragraph 80 from the 129-paragraph. Factual Background preceding Kimberlin's hodgepodge of claims against those Defendants. Unfortunately for Kimberlin’s claims, his cursory attempts to lodge the Blaze Defendants into the broader story fails to make them “guilty by association”: when the few facts in the Complaint as to the Blaze Defendants are isolated, nothing is left but what appears to be a pure defamation claim. However, it is telling that Kimberlin asserts no defamation claim at all against the * swatting, according to Kimberlin’s allegations in the Complaint, “is tbe calling ofthe police using a falsified phone number and telling the police that a major crime occurred at the address associated with that {phone number] in order to cause a large police response.” (Cplt. 42.) 2Blaze Defendants. Nor could he: no such claim can lie against true reporting or defamatory statements made without demonstrated malice, and even so, the statute of limitations for defamation expired five months before Kimberlin filed the Federal Action, Instead, in a concerted effort to plead around his inability to state a defamation claim, Kimberlin throws a variety of claims at the wall: intentional infliction of emotional distress, false light invasion of privacy, interference with prospective business advantage, and conspiracy fo commit state law torts azainst the Blaze Defendants As a threshold matter, Kimberlin cannot assert these claims against the Blaze Defendants in this Court because this Court lacks personal jurisdiction over the Blaze Defendants. Moreover, none of these defamation-like claims can succeed regardless of how Kimberlin labels them. For example, Kimberlin’s “false light” claim is simply a defamation claim in disguise, and even so, the Blaze Defendants’ reports did not place Kimberlin in a light different from the one he was already in historically or by virtue of more-recent reports. Indeed, Kimberlin’s entire grievance against the Blaze Defendants is that they reported on the same topics on which others previously had publicly reported ‘months earlier. Under black-letter law, the reports were not “outrageous” and thus cannot have come anywhere close to stating a claim for intentional infliction of emotional distress, Other claims are as shadowy as tie events Kimberlin describes: Kimberlin’s references to some unspecified prospective economic advantage are far too vague to state acclaim and do not, as required, explain how the Blaze Defendants in particular caused whatever loss Kimberlin may have incurred; meanwhile, the Complaint is devoid of anyfacts surrounding the Blaze Defendants’ involvement in any alleged conspiracy or the specific unnamed torts the Blaze Defendants purportedly conspired to commit. As detailed below, no matter how he dresses up his claims, Kimberlin’s lawsuit against the Blaze Defendants appears to be nothing more than a belated attack on a set of reports that Kimberlin did not like. His Complaint is substantively deficient, and wastes the Court’s and the Blaze Defendants’ time and resources in dealing with what is essentially an attempt to censor and financially punish the media for reporting about a situation involving someone who the law should find as libel-proof. This Court should promptly end Kimberlin’s repeated efforts to ensnare the Blaze Defendants, and award fees and costs accordingly. FACTUAL BACKGROUND. Accepting as true for purposes of this motion all factual allegations in Kimberlin’s Complaint, the facts of this case as it perteins to the Blaze Defendants are as follows: Kimberlin is no stranger to litigation (see, e.g., Cplt. $¥ 30, 45, 46) and has had several prior dealings with legal authorities, including criminal convictions connected to the 1978 bombings in Speedway, Indiana, drug offenses, and perjury — incidents of which the Court can take judicial notice. See Attorney Grievance Comm'n of Maryland v. Noren, 293 Md. 611, 613, 446 A.2d 423, 223-24 (1982) (taking judicial notice of earlier Jawsuit involving defendant and his prior bribery eonvietion); Landover Assoc. Fabricated Steel, 35 Md. App. 673, 681-82, 371 A.2d 1140, 1145 (1977) (a court may take judicial notice of the records of prior, separate cases). Kimberlin also has thrust himself into the public eye through his political activism (see, e.g, Cplt. $9 8, 126),which has drawn criticism from his political opponents, and has led to numerous feuds, altercations, and legal actions involving those opponents, some of whom are defendants in this case. (See, ¢.g., Cplt. $f 28-30, 43-47, 56); Kimberlin v, Nat'l Bloggers Club, No. GJH-13-3059, 2015 WL 1242763, at *1 (D. Md. Mar. 17, 2015), ‘The Blaze is a leading media company that provides news, information, and opinion content to millions of consumers through television, radio, and Intemet programming. Mercury Radio Arts is a multimedia production company that manages and produces content, products, and events in the publishing, radio, television, digital. and live events space, Glenn Beck is a well-known radio and television personality ‘whose programming is produced and distributed through Mercury Radio Arts and The Blaze. (See Cplt. $9 14, 20, 21.) Kimberlin discusses at length the eetions of, and his clashes with, several defendants in this case over the course of many years ~ including a purported “defamation campaign” (ie. 123) ~ not even counting several defendants who settled out of the Federal Action. In contrast, the Complaint claims the Blaze Defendants engaged in only the following acts during a single day in May, 2012: (1) allowing defendants Walker and Frey to appear via audio on Mr. Beck’s radioitelevision program, ‘where those defendants stated that they think Kimberlin or his associates may be involved in “swatting,” and reporting about Walker's and Frey's stories; (2) publishing articles about Kimberlin’s past and his recent feuds with bloggers; and (3) publishing an unspecified “defamatory graphic” about Kimberlin. (See id. 4 76-80, 126.)In summing up the acts that the Blaze Defendants allegedly committed, Kimberlin characterizes the Blaze Defendants as having published “defamatory statements” and he criticizes them for purportedly not following unidentified “journalistic standards that require that the subject of # story be given the opportunity to respond to an allegation of wrongdoing.” (/d $80.) Yet, while the Complaint contains no defamation claim against, the Blaze Defendants and fails to specify which statements are allegedly false, it does include an admission that Kimberlin comraitted crimes in the past. (See id. $187.) Based on these limited and undetailed allegations, Kimberlin’s Complaint aspires to bean end-run around the defamation laws, asserting four causes of action against the Blaze Defendants — including false light invasion of privacy and intentional infliction of emotional distress — over the course of hundreds of paragraphs, However, even afier having had the chance to be educated on the deficiencies of his case in the Federal Action, all of Kimberlin’s claims in his Complaint stil fail as to the Blaze Defendants. ARGUMENT I THIS COURT LACKS BOTH GENERAL AND SPECIFIC PERSONAL, JURISDICTION OVER THE BLAZE DEFENDANTS Kimberlin does not carry his burden to allege and prove a basis for the exercise of personal jurisdiction over the Blaze Defendants. See MeKown v. Criser's Sales and Serv., 48 Md. App. 739, 747, 430 A.2d 91, 97 (1981). Nor can he establish a prima facie case for personal jurisdiction necessary to defeat the Blaze Defendants’ motion to dismiss. See Beyond Sys., Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 26, 29, 878 A.2d 567, 582-84 (2005).A. The Blaze Defendants’ Online Presence Is Insufficient to Establish Personal Jurisdiction in Maryland. The extent of Kimberlin’s jurisdictional allegations as to the Blaze Defendants is to say that the Blaze Defendants’ content was “viewed in Maryland and across the globe” (Cplt. § 76); “published on the Internet” (2. ] 77); and “viewed globally on the Internet” (id. $79). These allegations are insufficient to establish general or specific jurisdiction, and the Blaze Defendants are in fact not subject to the jurisdiction of the Court First, this Court cannot exercise general jurisdiction over the Blaze Defendants solely because their online materials may or may not have been viewed or read in Maryland. As the Court of Appeals of Meryland has held, “the existence of a website alone is not sufficient to establish general jurisdiction in Maryland,” Beyond Sys., Inc., 388 Md. at 25, 878 A.2d at 582, and the Fourth Circuit has determined that online transmissions from a website “do not add up to the quality of contacts necessary for a State to have jurisdiction over the person for all purposes.” ALS Scan, Ine. v. Digital Serv. Consultants, Ine., 293 F.3d 707, 715 (4th Cir. 2002). Second, Kimberlin does not contend that the Blaze Defendants’ statements were directed at Maryland, or transmitted with the specific intent of reaching a Maryland audience. In the Intemet context, Maryland courts may only exert specific jurisdiction over a foreign defendant who “directs electronic activity into the State... with the manifested intent of engaging in business or other interactions within the State.” Id. at 717. There is no dispute that the Blaze Defendants did no such thing. Kimberlin concedes that the Blaze Defendants’ statements were available online and viewed “across the globe” rather than directed into Maryland. (See Cplt. §{] 76-78, 7154.) Kimberlin does not allege that the Blaze Defendants’ programming draws a significant portion of their admittedly “global” nidience from Maryland. See Fertel v Davidson, No. CIV. CCB-13-2922, 2013 WL 6842890 (D. Md. Dee. 18, 2013) (dismissing defamation case against nonresident who posted negative online reviews of Maryland plaintiff's business because the reviews were “available globally” and were not “limited to a particular geographic audience”). Indeed, The Blaze’s website clearly is aimed at a national audience, and does not focus on Maryland. (See generally, www.theblaze.com.) See Beyond Sys., No. CIVA DKC 2005-2446, 2006 WL 1554847, at *8 (D. Md. May 31, 2006) (“Whether the defendant intended to target Maryland can be determined from the character of the website at issve.”); Kerodin v. ServiceMagic, Inc., No. RWT 11CV2981, 2013 WL 951754, at *4, n.1 (D. Md. Mar. 11, 2013) (“The Court may properly take judicial notice of... the current state of Plaintifis” website.”) Moreover, the Blaze Defendants did not aim their comments toward Maryland or a Maryland-specific audience with the intent of interacting with the stae or its residents, and the materials incorporated by reference in the Complaint bear this out, (See Cplt. 76 (in the cited video, only mention of Maryland is that Kimberlin lives there); 77 (cited article makes no mention of Maryland; Mr. Beck states that he wants to “expose America to what is going on”); 78 (cited article makes no mention of Maryland other than that Kimberlin lives there, and states that “Americans around the country” should hear defendant bloggers’ stories); | 126 (cited article makes no mention of Maryland))2 * While the law in Maryland is not completely clear, the Blaze Defendants believe the Court may consider the substance of the online videos and articles which Kimberlin references in the Complaint without Converting this motion into one for summary judgment because Kimberlin's provision of full links to those 8That the subject of the Blaze Defendants’ news reports ~ Kimberlin — happens to reside in Maryland is not sufficient to show that the Blaze Defendants intended to “engag[e] in business or other interactions within the State.” See Fertel, 2013 WL 6842890, at *6 (na personal jurisdiction where only Maryland connection was that plaintiffs “happen to be located there” and defendant “identifies this fact in her Internet posts”). B. This Court Cannot Exercise Personal Jurisdiction Over The Blaze Defendants Consistent With Due Process. The exercise of personal jurisdiction would not meet due process requirements here. To satisfy due process, a foreign defendant must have “minimum contacts with the forum so that requiring that party to defend itself there would not “offend traditional notions of fair play and substantial justice.” Beyond Sys,, Inc., 388 Md. at 22, 878 A.2d at $80, The Blaze Defendants have no meaningful contacts with Maryland, much less the extensive contacts necessary for the exercise of jurisdiction to comport with due process, ‘The Blaze Defendants must have “continuous and systematic” contacts with Maryland for a court to exert general personal jurisdiction over them, ALS Scan, Inc., 293 F.3d at 712, to the point that such contacts with the state are so substantial “as to render them essentially at home” in Maryland. Goodyear Dunlop Tires Operations, S.A. v Brown, 131 8. Ct. 2846, 2851 (2011) (intemal citation omitted). A corporation is materials is akin to incorporating them infill into the Complaint. See Converge Servs. Grp., LLC. (Curran, 383 Mid. 462, 475, 860 A.2d 871, 879 (2004) (te court, on motion to dismiss, should consider “the ‘our comers ofthe complaint and its incorporated supporting exhibit, if any"); Faya x: maraz, 329 Ma. 435, 44,620 A.24 327, 331 (1993) (courts may teke judicial notice of matters “capable of certain verification”), But see Hrehorovieh v, Harbor Hosp. Cir, Ine, 93 Md, App. 772, 614 A.24 1021 (1992) (complaint referred to specific provisions of docunents and defendants cited to other provisions in mation to dismiss; court properiy considered the cited maerials but converted a motion to dismiss into one for summary judgment). To the extent the Court disagrees with the Blaze Defendants, the Blaze Defendants respectfully request thatthe Court not consider these material, or those cited in Section IIA, below.generally considered “at home” in the state in which itis incorporated or where it has its principal place of business, see id at 2854, Lewis v, Park Plus, Inc., No. 8:13-CV-01709- AW, 2013 WL 6713224, at *4 (D. Md. Dec. 18, 2013), and natural persons are “at home” where they are domiciled. Brown, 131 S. Ct. at 2853, Kimberlin admits that all the Blaze Defendants are located in New York (see Cplt. $f 14, 20, 21), and does not claim that The Blaze or MRA are incorporated in Maryland (and they are not)? The Blaze Defendants are not subject to specific personal jurisdiction either, because the requirements of the Maryland long-arm statute are not satisfied. See Bond v. Messerman, 391 Md. 706, 721, 895 A.2d 990, 999 (2006). The long arm statute contains only two potentially relevant provisions, but neither applies here. Section 6-103(b)(3), which covers torts within the state, does not apply because the Blaze Defendants did not engage in any “act or omission in the State.” Under § 6-103(b)(3), “both the tortious injury and the tortious act must have occurred in Maryland,” Winter v. Pinkins, No. IKB- 14-2125, 2014 WL 5500393, at *3 (D. Md, Oct. 29, 2014) (citations omitted), and allegedly “[bJarmful speech occurs in the state where the speech originates.” Id. (emphasis in original). Kimberlin concedes that all the Blaze Defendants are located in ‘New York (see Cplt. $9 14, 20, 21), and he does not allege that any of the Blaze Defendants physically entered Maryland prior to making any of their statements. * See hitp:www.dos.ny.gov/eorps’bus_entity_search html (search “Mercury Radio Arts”; MRA is incorporated in New York); https/idelecorp deleware.govitin]GINameSearch jsp (search “TheBlaze”; The Blaze is incorporated in Delaware). The Court mey take judicial notice of matters such as these which are “capable of certain verification,” Faya, 329 Md. 2: 444, 620 A.2d at 331, including by reference to public records. See, eg, Marks v. Criminal Injuries Comp. Bd. 196 Md. App. 37,79 n.17, 7 A.3d 665, 689, 0.17 (2010) (judicially noticing that court administrative office makes Maryland court records available online) 10Assuming the Blaze Defendants committed any tort without the state ~ which the Blaze Defendants deny ~ Kimberlin cannot satisfy the other requirements of § 6- 103(b\(4), namely, engaging in a persistent course of conduct in Maryland. See Winter, 2014 WL 5500393, at *3. As mentioned cbove, Kimberlin does not allege that the Blaze Defendants engaged in any course of conduct within the state, much less a persistent one. Indeed, Kimberlin only states that the Blaze Defendants published some material online on one day in May, 2012. (See Cplt. $§ 76-80, 126); Winter, 2014 WL 5500393, at *4 (no jurisdiction over defendant who allegedly published “ten harmful web postings from 2012-2013" because such postings do not demonstrate a “persistent course of conduct”) ‘Thus, by Kimberlin’s own admission the Blaze Defendants do not belong in this forum, I. KIMBERLIN’S CLAIMS AGAINST THE BLAZE DEFENDANTS ARE DEFAMATION CLAIMS IN DISGUISE; NONE IS LEGALLY OR FACTUALLY COGNIZABLE ‘The Maryland Rules require that a pleading must “contain a clear statement of the facts necessary to constitute a cause of actio Md. R. 2-305. Itis well established that “{tJhe grant of a motion to dismiss (under Md. Rule 2-322(b)(2)] is proper if the complaint does not disclose, on its face, a legally sufficient cause of action.” Rossaki v. NUS Corp., 116 Md. App. 11, 18, 695 A.2d 203, 207 (1997) (intemal citations omitted), ‘The facts comprising the complaint “must be pleaded with sufficient specificity,” RRC Ne., LLC, 413 Md, 638, 644, 994 A.2d 430, 434 (2010), even though the Court must assume that the well-pleaded allegations ere true and must draw all inferences in favor of the non-moving party. See Walton v. Network Solutions, 221 Md. App. 656, 665, 110 A.3d 756, 762 (2015). “[BJald assertions and conclusory statements by the pleader willnot suffice,” RRC Ne,, LLC, 413 Ma. at 644, 994 A.2d at 434, and “any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader.” Alleco Inc. v. Harry & Jeanette Weinberg Found, Inc.,340 Md. 176, 193, 665 A.2d 1038, 1046 (1995) (intemal citation omitted). A. The Publication of Facts About Kimberlin’s Criminal Past and Alleged Current Criminal Activity Is Not “Outrageous” Conduct Sufficient to State a Claim for Intentional Infliction of Emotional Distress. The Supreme Court has held that plaintiffs may not circumvent First Amendment based limits on speech-based torts like defamation by pleading a claim for intentional infliction of emotional distress (“IED”). Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988). See also Batson v. Shiflett, 32: Md. 684, 734-36, 602 A.2d 1191, 1217 (1992) (reversing IED claim arising from allegedly defamatory statement). Yet this is exactly what Kimberlin is trying to do: use IED as a back door to a non-existent defamation claim. (See, e.g., Cplt. $9 80 (“defamatory statements” were allegedly made “to cause maximum harm to Plaintiff"); 184 (“defamatory and false statements” allegedly constituted “extreme and outrageous conduct”),) Claims for IIED are properly limited to situations far worse than the ones Kimber‘ alleges. Maryland courts warn that the “tort of intentional infliction of emotional distress is rarely viable, and is ‘to be used sparingly ...."* Bagwell v, Peninsula Reg’l Med. Cir., 106 Md. App. 470, 514, 665 A.2d 297, 319 (1995). Indeed, claims for ITED will lie only when the conduct is extreme and outragecus, and for conduct to be “outrageous,” it cannot be conduct that 2 plaintiff might personally think is outrageous to him: the conduct must be “so extreme in degree, as to go beyond all possible bounds of decency,and to be regarded as atrocious, and utterly intolerable in a civilized community.” Harris vy, Jones, 281 Md. 0, 565, 380 A.2d 611, 614 (1977). Kimberlin’s claims do not come close to meeting this standard. See, e.g, Figueiredo-Torres v. Nickel, 321 Md, 642, 584 A.2d 69 (1991) (psychologist had sex with plaintiff's wife while treating the couple as their marriage counselor); B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988) (physician did not tell nurse with whom he had sex that he had herpes); Young v: Hartford Accident & Indem, Co., 303 Md. 182, 492 A.2d 1270 (1985) (insurer's “sole purpose” in insisting that claimant submit to psychiatric examination was to harass her and force her to abandon her claim or commit suicide). ‘Therefore, even if the Blaze Deferdants made or published intentionally false statements on May 25, 2012 (which, as discussed below, they did not as a matter of fact), such acts could not possibly give rise to an IIED claim. See Sirpal v. Fengrong Wang, CIV. WDQ-12-0365, 2012 WL 2880565, at *4 (D. Md. July 12, 2012) (granting motion to dismiss because “{dJefamatory conduct ‘in no way satisfies [the] exacting standard for extreme and outrageous conduct.”") (intemal citations omitted). Moreover, even if the Blaze Defendants deliberately joined Kimberlin’s portrayed vast blogger conspiracy in an attempt to target and harass him (which they absolutely did not and are not alleged to have done), even that would not constitute the extreme conduct necessary for an ITED claim. “[S]trategically designed [speech]”” that may even be “intended and calculated to harass’ the plaintiff by accusing him of crimes is not extreme and outrageous.” Id. at "4 (intemal citation omitted). Viewed from any angle, Kimberlin’s IIED claim fails. 13B. Kimberlin’s Claim for False Light Invasion of Privacy Is Lacking in Legal Merit and Conflated with Defamation. Kimberlin's characterization of the Blaze Defendants’ actions does not fit squarely into any of Maryland’s several invasion-of-privacy torts, Based on the Blaze Defendants’ alleged publication of “defamatory” statements (see Cpt. $f] 80, 123, 155), which in the Blaze Defendants’ situation consisted of statements on the similar topics to those that others had raised in sum or substance previously (see id. $f 76-79), Kimberlin seems to be asserting that the Blaze Defendants committed the tort of false light invasion of privacy.’ Kimberlin’s Complaint fails to satisfy critical aspects of this cause of action, as itis required to do to state a claim. To state a claim for false light invasion of privacy, Kimberlin must show “(1) publicity ina false light before the public; (2) which a reasonable person would find highly offensive; and (3) that the actor had knowledge of or acted in reckless disregard of the publicized matter placing plaintiff in a false light.” Dobkin v, Joins Hopkins Univ., No. CIV. A. HAR 93-2228, 1996 WL 254860, at *10 (D. Md. Apr. 18, 1996) (citing Hollander v. Lubow, 277 Mad. 47, 55, 351 A.2d 421, 425 (1976)). As with any tort, Kimberlin also must establish that he was injured and that such injury was caused by the Blaze Defendants’ actions. See Doe v. Chao, 540 11S. 614, 621 (2004). Kimberlin’s claim fails for four independent reasons. “ Because the Blaze Defendants are based in New York and their actions took place in New York, New ‘York law - which does not recognize a cause of action for false light, see Cruc v, Larin News Impacto ‘Newspaper, 627 N.Y.S.24 388, 389 (App. Div. Ist Dep't 1995) — arguably would apply. See, e.g, Ground Zero Museum Workshop v. Wilson, 813 F. Supp. 24 678, 699-700 (D. Md. 2011) (applying New York law to defamation claim involving Internet posting because New York had the most significant relationship to the alleged defamation). Thus, itis questionable whether Kimberlin can even asser his false light invasion of privacy claim against the New York-based Blaze Defendants in the fist place, “41. The Blaze Defendants have not made any actionable false statements, Kimberlin cannot be placed in a false light unless he can establish that the Blaze Defendants publicized statements that were, in fact, false. See Bagwell, 106 Md. App. at 514, 665 A.2d at 319. The ellegations in tie Complaint belie the notion that the Blaze Defendants made any false statements; in ‘act, they demonstrate that the only false statements in this case are Kimberlin’s. First, many of the statements at issue are indisputably and admittedly true — such as those concerning Kimberlin’s criminal record including his lengthy imprisonment for the act of domestic terrorism known as the 1978 Speedway Bombings, see Kimberlin, 7 F.3d 527 —and Kimberlin does not deny them. (See, e.g, Cplt. § 187) He cannot simultaneously admit he is a felon who was convicted for perpetrating an act of domestic terrorism, yet claim that the Blaze Defendants’ news reports so stating are false. After he titicizes the Blaze Defendants for saying he helps activists (see id. 4126), he states in the very next paragraph that he does help activists (id. § 127) ~ further confirming that the thrust of Kimberlin’s Complaint is to subject the Blaze Defendants to litigation for reporting the truth. Kimberlin also does not deny that he feuds with bloggers, and has ‘been in altercations with his opponents. (See, e.g., id. 99 28-30, 43-47, 56.) Truth isa complete defense to a claim of false light, see Hatley v. Tuffy, JFM-09-711, 2010 WL 4923831, at *8 (D. Md. Dec. 2, 2010) (granting motion to dismiss because published statements were true), and Kimberlin’s claim that the Blaze Defendants falsely called him a terrorist and opponent of bloggers (see, 2.g., id. $9 77-78, 126), is disingenuous 15Kimberlin’s other allegations are based on contortions of what was actually said. ‘While Kimberlin alleges that the Blaze Defendants accused him of swatting (see Cplt. $9 76-78), none of the sources to which Kimberlin refers says he was the perpetrator of the swatting incidents. In fact, the articles say that the perpetrator of the swattings is unknown, but could possibly be an associate of Kimberlin’s. Even defendant Patrick Frey, who appeared on Mr. Beck’s show, did not “impute” or “imply” that Kimberlin placed the fraudulent call to the police, but rather indicated that the suspect of his, swatting was unknown yet may have been associated with Kimberlin somehow.S At worst, someone implied that Kimberlin mey have some associates who have been trying to seek revenge for statements that members of the NBC group published. The only person “imputing” the swatting incidents to Kimberlin is Kimberlin, Second, even if the Blaze Defendants (or those who appeared on the Blaze Defendants’ programming) had imputed, implied, or speculated that Kimberlin was behind the swattings, such statements are inherently lawful, because the Blaze Defendants “plainly expresse{d] a subjective view, an interpretation, a theory, conjecture or surmise, rather than [4] claim{] to be in possession of objectively verifiable [false] facts,” and such “statement{s] [are] not actionable.” Gallardo v, FedEx Kinko's Office & Print Servs., Inc.,No. 08-CV-00392 (JEM), 2008 WL 2143011, at *7(D. Md. May 12, 2008) (internal citations and quotation marks omitted). The Blaze Defendants conveyed witnesses’ accounts and gave fair treatment to the story about swattings given the * in the interview, Mr. Beck asks Mr, Frey: “You can’t directly te this to [Kimberln), but you had a SWAT team at your bouse?"; Mr. Frey responds that “somebody called” to report a shooting and that Kimberlin and his “friends and supporters” have engaged in other harassing conduct against bloggers. 16admitted ambiguity as to who was behind the acts. They never represented that they possessed objectively verifiable proof that Kimberlin was behind the swattings, nor did their guests, and Kimberlin does not allege they did. Rather, they expressed their subjective views and reasonable interpretations ~ and allowed others to express thoughts, theories, and opinions ~ conceming Kimberlin’s known history and the possibility that he or an associate may have something to do with revenge-by-swatting on certain bloggers. In addition, the Blaze Defendants are protected by the “fair comment” privilege enjoyed by newspapers and other media outlets that “express a fair and reasonable opinion or comment on matters of legitimate public interest,” Piscatelli v. Van Smith, 197 ‘Ma. App. 23, 38-39, 12 A.3d 164, 174 (2011), as long as the reporting is “substantially accurate.” Seymour v. A.S. Abell Co., 557 F, Supp. 951, 955 (D. Md, 1983). See Ferragamo v. Signet Bank/Maryland, No. CIV. A. WN-88-3333, 1992 WL 219826, at 7-8 (D. Md, Mar. 17, 1992) (applying privilege in false light ease). The Blaze Defendants reported on crimes which they considered a matter of serious public concem based on facts publicly known about Kimberlin and eyewitness accounts of swattings.* As discussed below, Kimberlin does not plead that the Blaze Defendants acted with malice, nor do the facts support such a finding and, indeed, the fair comment privilege * By Kimberlin's own admission, the Blaze Defendants” reports could hardly be said to have published “private facts” necessary to even state a claim for false light invasion of privacy. See Furman v. Sheppard, 130 Md. App. 67, 77, 744 A.2d 583, 587 (2000) (false light invasion of privacy “requires publicity, meaning that ‘the disclosure of che private facts must be a public disclosure, and nota private one") emphasis added) (internal citations omitted). The facts stated in the Blaze Defendants’ reports were related to Kimberin’s criminal background, Which has been pat of te public record for the beter part of four decades, and his purported connection to swatting. an occurrence which, according to Kimberlin’s Complaint, is quite obviously public. (See, e.g. Cpt 2 (swatting results in “a large police response”) 7extends to opinions based on facts even if the facts turn out to be false.’ Polanco v. Fager, 886 F.2d 66, 69 (4th Cir. 1989) (privilege applies “so long as the publisher was not guilty of malice in publication”). 2. Kimberlin does not set forth sufficient allegations to satisfy the ‘actual malice” state-of-mind requirement applicable to false light claims. ‘As Kimberlin appears to acknowledge, in order to state a false light claim, he must establish that the Blaze Defendants acted with “actual malice”: knowledge of, or reckless disregard for, the falsity of a publicized matter. See Hatley, 2010 WL 4923831, at *8-9; Bagwell, 106 Md. App. 470; (See Cplt. { 80.) Actual malice is a high standard and “cannot be established merely by showing that. .. the publisher acted negligently.” Capital-Gazette Newspapers, Ine. v. Stack, 293 Md. 528, 539, 445 A.2d 1038, 1044 (1982). Rather, Kimberlin must show that the Blaze Defendants made “false statements +. with [2] high degree of awareness of their probable falsity,” or had “serious doubts as to the truth of [the] publication.” a, at 1043-44 (citing various Supreme Court cases). ‘Yet in Kimberlin’s Complaint there “has been no fact pleaded as to this issue... from which actual malice is proven or may be inferred.” Phillips v. Washington Magazine, Inc., 38 Md. App. 30, 36-37 & n.1, 472 A.2d 98, 101 (1984) (affirming trial court's granting of motion to dismiss defamation claim for failure to allege actual malice; noting the same standard applies to privacy clais Kimberlin makes no state-of-mind allegations as to The Blaze or MRA, and his state-of-mind allegations relating to Mr. Beck are completely speculative, Kimberlin claims that Mr. Beck “new of [sic] should have known thef] [statements] were false” The Blaze Defendants do not concede that any statements at issue here were false, 18because he supposedly did not conduct due diligence, and acted with a “reckless disregard for the truth” because he did not follow unspecified “journalistic standards” that purportedly require anyone reporting on Kimberlin to give him the chance to respond to allegations of wrongdoing. (Cplt. § 80.) But Kimberlin cites no “joumalistic standards” or authorities for the proposition that Mr. Beck was obligated to provide Kimberlin with “the opportunity to respond,” and even if such “standards” existed, they would not be sufficient to shoehorn legitimate news reporting that he dislikes into a false light claim. Failure to comply with what he perceives as a journalistic requirement is, under a best-case scenario for Kimberlin, negligerce, and would fall far short of pleading constitutional malice. See Harte-Hanks Comm ns, Inc. v. Connaughton, 491 U.S. 657 (1989) (newspaper's failure to investigate will not alone support a finding of actual malice); Beckley Newspapers Corp. v. Hanks, 389 US. 81, 84-85 (1967) (“failure of petitioner to make a prior investigation” did not constitute “proof sufficient to present a jury question whether the statements were published” with malice). Indeed, Kimberlin acknowledges the weakness of his positioa by implying that mere negligence is sufficient to state a claim for false light but, as a matter of well-settled law, it isnot, (See Cplt. | 161 (“Altematively, the named Defendants were negligent in the publication of their statements about Plaintiff, the effect of which was to portray Plaintiffin a false light.”),) In addition, the facts of this case as Kimberlin has stated them could not plausibly lead to the conclusion that the Blaze Defeadants made any deliberately false statements. There is an extensive public record detailing Kimberlin’s criminal record, his clashes with his critics, and his dishonesty (including commission of perjury, see United States v.Kimberlin, 805 P.2d 210, 234 (7th Cir. 1986)). Given what the Blaze Defendants knew about Kimberlin from the historical record, they would have had no reason to believe — much less know ~ that any statements mace by Mr. Frey or Mr. Walker were false (and the Blaze Defendants do not believe they were). Further, the Blaze Defendants engeged in legitimate reporting of victims’ personal accounts of a crime, and those victims’ theories, and cannot be held liable for this speech. See Capital-Gazette Newspapers, Inc., 293 Md. at 539, 445 A.2d at 1044 (actual malice cannot even be proved by showing that “publisher acted in reliance on the unverified statement of a third party without personal knowledge of the subject matter of the defamatory statement”) (emphasis added). See also Garrison v. State of Louisiana, 379 U.S. 64, 73-74 (1964) (listing types of facts that fail to rise to level of establishing malice). 3. Kimberlin has suffered no cognizable “false light” injury. Kimberlin’s false light claim also fails because there is no attributable “false light” injury within Kimberlin’s dressed-up defamation claim against the Blaze Defendants, False light and defamation are distinct causes of action with distinct injuries. ‘Most telling about the impropriety of his false light claim is the fact that Kimberlin’s allegations of damage hinge on supposed harm to his reputation. (See Cplt. 1162) (defendants “caused substantial injury to Plaintiff's reputation”). A key distinction between defamation and false light is that a “defamation action protects a party's interest in a good reputation while false light protects interest in being let alone from adverse publicity.” Bagwell, 106 Md. App. at 507 n.8, 665 A.2d at 315 n.& (internal citations omitted). Kimberlin is not concemed with unwanted publicity; as a man who has been in 20the public eye for nearly 40 years and bases this very action on his position that the acts of the defendants are encouraging him to stay out of the public eye, his Complaint makes clear that harm to his reputation is more important." Further, even if the Complaint were ambiguous as to whether Kimberlin states a “false light” injury, any ambiguities should be construed against him, See Aileco Inc., 340 Ma. at 193, 665 A.2d at 1046. Objectively or subjectively, even considering Kimberlin’s unsupported complaints about how he was cast in some sort of false light, itis implausible to believe that whatever statements the Blaze Defencants published somehow negatively affected the public's perception of Kimberlin’s character. As stated above, Kimberlin has been a notorious public figure for decades, and his reputation is so badly tamished by his widely known and extensive prior criminal activity that he could not possibly have expected any degree of “reputational” privacy any longer. Indeed, he has placed himself in the public eye through not only his past malfeasance, but through his employment, his public advocacy, and his litigiousness, and he therefore must have anticipated that his past, ‘would become an issue of public debate. (See, e.g., Cplt. $9 24, 25, 30, 45, 126, 187.) Finally, at best, Kimberlin has suffered only de minimis harm ~ if any harm at all — to his reputation as a result of the purported conduct of the Blaze Defendants.® Indeed, * Kimberlin’s false light claim is essentially an enc-run around an arguably time-barred defamation claim. A defamation claim by any other name is still a defamation claim, see Hustler Magazin, inc v. Falwell, 485 US. 46, 53, 56 (1988), and if Kimberlin wants to dress up such a claim as false light, the one-year statute of limitations for defamation should — asa nolicy matter ~apply. See Md. Code Ann, Cts. and Jud, Proc. § 5-105. Indeed, while the question is unsetled in Maryland, certain cours have so held. See, e.2, Smith v. Esquire, Inc., 494 F. Supp. 967, 970 (D. Md. 1980) (one-year defamation statute of limitations applies to false light claims). Bur see Allen v, Bethlehem Steel Corp., 76 Md. App. 642, $47 A.2d 1105 (1988) (three-year statute of limitations for invasin of privacy claim applies to flse ight claims). ® Put another way, Kimberlin is libel-proof, See Logan v. District of Columbia, 447 F. Supp, 1328, 1336 (DDC. 1978) (plaintiff with extensive criminal record was “libel-proof"), While the cours of this State 21allegations that Kimberlin engaged in “swetting” pale in comparison to his being held criminally responsible in @ court of law forthe serious injury of two victims of the Speedway Bombings (and civilly responsible for the death of one), and responsible in the court of public opinion for various other acts of wrongdoing 4, If Kimberlin was injured, the Blaze Defendants were not the cause, Kimberlin alleges that the Blaze Defendants’ reports built upon a series of existing publications on the topic of swatting, essentially re-publishing already public facts from reports released widely several months earlier. (See, e.g., Cplt. $9 70, 71, 76- 78.) Considering that the Intemet was already abuzz with talk of swatting in connection with Kimberlin and his associates at least half a year prior to the Blaze Defendants’ publications, itis impossible to maintain or demonstrate that the Blaze Defendants? statements themselves caused any specific injury. Indeed, by Kimberlin’s own admission, the Blaze Defendants constituted only a small part of a much larger community of commentators discussing Kimberlin on and before May 25, 2012 (see, e.g., Cplt. $¥] 64, 65, 70, 71), and Kimberlin offers no plausible causal connection between the Blaze Defendants’ specific statements and whatever injury he purports to have suffered. If the Blaze Defendants, months later, reported on topics that others, including well-known bloggers and political commentators, had previously published widely, then the Blaze Defendants could not have caused the injury: others did, and Kimberlin’s own Complaint thus effectively defeats his claim. have not yet opined om the “libel-proof” plaintiff doctrine, Kimberlin represents a textbook example of how that doctrine is defined and applied by other courts. See, e.g, Wynberg v. Nat'l Enguirer, Inc, 564 F. ‘Supp. 924, 927 (C.D. Cal. 1982) (plaintiff's past criminal convictions rendered him “libel proof”). 2Moreover, Kimberlin does not sufficiently allege what injury was specifically caused by the Blaze Defendants’ re-publication of already widely publicized facts, and he could not plausibly do so. Given Kimberlin's widely publicized criminal history and his undisputed feuds with (and lawsuits against) bloggers. (see, e.g., Cplt. $Y 28-30, 43-47, 56), Kimberlin cannot plausibly allege to have been injured by statements the Blaze Defendants may have made or otherwise facilitated long after his reputation was solidified by his own acts and many other prominent commentators’ voiees. In addition, the discussion of swatting was not only a minor component of the material the Blaze Defendants published that day, the discussion of whether Kimberlin might be involved with swatting bloggers is a tree in the larger forest of Kimberlin’s past and reputation, aiven that he was already in the public eye for far worse than making fake phone calls to the police. His attempt to self-servingly portray himself as one who has tured over a new leaf and would never engage in acts t» advance his political worldview is disingenuous (see, e.g.. Cplt. $98, 150-53), and his recent interactions with certain bloggers suggest that his past history was bound to resurface anyway. Kimberlin’s lone claim of causation is that “as a result” of articles published on May 25, 2012, “the State Department no longer brings [] activists to” his non-profit organization, Justice Through Music (“ITM”). (Cplt. § 126.) Such a “bald assertion[} «+ by the pleader will not suffice.” RRC Ne., LLC, 413 Ma. at 644, 994 A.2d at 434, Further, the statements in the article referenced in paragraph 126 of the Complaint were tue reports on Kimberlin’s well-documented criminal past, The only injury that arguably flowed from the article is the hard realization that there is no “tight to be Paforgotten,” which is insufficient to state a claim against the Blaze Defendants, who have xno responsibility to protect Kimberlin from his own past. C. Kimberlin’s Claim for Tortious Interference Fails Because He Pleads No Underlying Wrongfal Act or Injured Business Relationship. According to the Complaint, the Blaze Defendants’ aetions ~ namely, media reporting on one day in May, 2012 ~ were designed to directly cause Kimberlin business injury in some unspecified amount exceeding $75,000. (Cplt. at p. 59 (prayer for relief),) ‘Yet, as with his other claims, he fails to state how those actions, specifically, had any causal nexus to a business injury. And indeed, Kimberlin fails to establish a non- speculative future business relationship that such actions allegedly harmed. In order to state a tortious interference claim Kimberlin must show that the Blaze Defendants committed “(1) intentional and willful acts; (2) calculated to cause damage to the plaintiff] in {his} lawl business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiatle cause on the part of the defendants (which constitutes malice); and (4) actual damage and loss resulting.” Carter v, Aramark Sports & Entm’t Servs., 153 Md. App. 210, 240, 835 A.2d 262, 280 (2003) (internal citations omitted). More specifically, he must demonstrate that the Blaze Defendants engaged in “conduct that is independently wrongful cr unlawful,” Bell BCI Co. v. HRGM Corp. CIV, JEM-03-1357, 2004 WL 3222885, at *6 (D. Md. Aug. 6, 2004) (citation omitted), and, crucially, he “must identify a possible future relationship which is likely to occur, absent [defendant's] interference, with specificity.” Baron Fin. Corp. v. Natazon, 471 F. Supp. 2d 535, $46 (D. Md. 2006). Kimberlin does not adequately plead “independently wrongful” conduct calculated to harm him, or harm to any likely business relationship. 24Kimberlin fails to establish e prima facie case for any underlying “wrongful acts” required for a tortious interference claim. See Baron Fin, Corp., 471 F. Supp. 2d at 541- 42 (granting motion to dismiss where plaiatiff failed to specifically allege defendants had engaged in unlawful conduct). “Wrongful or unlawful acts include common law torts” as, well as violence, intimidation, criminal violations, and other infractions not at issue here. Carter, 153 Md. App. at 241, 835 A.2d at 280 (2003). As discussed above, Kimberlin fails to state claims for the common law torts of false light invasion of privacy and IIED, and consequently cannot state a claim for tortious interference. Kimberlin also fails to plead sufficiently that the Blaze Defendants’ statements were specifically “caloulated” solely to hurt his “lawful business” without “right or justifiable cause.” Rather, the Blaze Defendants were reporting on issues they deemed of public importance; indeed, Kimberlin notes that Mr. Beck called one of the articles at issue “one of the most important exposes [sic] that they have ever done.” (Cplt. 479.) Thus, the claim fails for this additional reason, by Kimberlin’s own admission, The claim fails for yet another reason: Kimberlin’s failure to identify any prospective business relationship that is reasonebly likely to arise, The only relationship that Kimberlin so much as hints at involves the U.S. State Department and some unspecified work as an employee of JTM and as a musician. (See Cplt. $9126, 173.) At ‘most, Kimberlin alleges that, as a result of statements published by the Blaze Defendants about the fact that Kimberlin, the convicted Speedway Bomber, is working with the State Department, “the State Department no longer brings ... activists to Justice Through Music.” (Id. 126.) Kimberlin fails to allege with any specificity that, absent the BlazeDefendants’ alleged “interference,” such a relationship was reasonably certain to continue. See Baron Fin. Corp., 471 F. Supp. 2d at 546; Macklin v. Robert Logan Assocs,, 334 M4, 287, 297, 639 A.2d 112, 117 (1994) (the alleged wrongful conduct must. have in fact terminated or negatively affected the prospective relationship). “No authority suggests that a cause of action exists to recover for tortious interference with one’s occupation and livelihood in general.” Baron Fin. Corp., 471 F. Supp. 24 at 542. Kimberlin may be upset that certain people have shed a light on his past, but a media organization is under no obligation to ensure that Kimberlin’s lines of income are secured for years to come merely because that organization may have published or broadcast a report about him. Notably, Kimberlin cites no guarantee that the State Department would keep funding him if he was outed as a former convicted domestic terrorist - reformed or not ~ nor does he specify how he is no longer able to work for his company or work as a musician as a result of the Blaze Defendants publications. The claim should be dismissed accordingly. D. Kimberlin Fails to State a Claim for Conspiracy to Commit State Law Torts Because His Underlying Tort Claims Fail and Because He Does Not Plead The Existence of An Unlawful Agreement. Kimberlin’s claim for conspiracy to commit state law torts, like the other claims, lacks any factual basis. Kimberlin identifies no facts to support the allegation that the Blaze Defendants were part of an agreement to commit some unidentified torts; he identifies no acts that they took in furtherance of any agreement; and he does not establish any resulting tortious injury — al. essential elements to state a claim forconspiracy to commit state law torts. See Hoffinan v. Stamper, 385 Md, 1, 24-25, 867 A.2d 276, 290 (2005); Alleco, Inc., 340 Md, at 189-191, 665 A.2d at 1044-45, At most, Kimberlin alleges that NBC wes involved in a concerted effort to attack him (see Cplt. 190), but he does not allege that the Blaze Defendants are part of NBC, and nowhere in nearly 200 paragraphs of allegations does he identify any type of overall agreement the Blaze Defendants were allegedly part of, or any actions the Blaze Defendants took to further such an agreement. Kimberlin alleges only that one of the purported members of NBC was a guest on Mr. Beck’s radio show, at which time he reported that he had been “swatted” and believed that Kimberlin or one of his associates may have been involved. (See Cplt. § 76) (In the cited video, Mr. Beck asks Mr. Frey “you can’t directly tie this to [Kimberlin], but you had a swat team at your house?”) Further, Kimberlin’s Complaint is absent of allegations about what the Blaze Defendants specifically did “to carry the conspiracy into effect.” Hill», Brush Engineered Materials, Inc., 383 F. Supp. 2d 814, 824 (D. Md. 2005), Cf, MeCourry v. Town of Eliton, No. WMN-12-1839, 2013 WL 5740679, at *7 n.5 (D. Md. Oct. 22, 2013) (declining to extend liability to all defendants by way of bald allegations of civil conspiracy). “Without factual allegations that provide an indication of when and how the agreement occurred and how each of the cefendants specifically were parties to the agreement, there is no civil conspiracy clsim.” Vollmar v. O.C. Seacrets, Inc., 831 F. Supp. 2d 862, 870 (D. Md. 2011). Finally, for the reasons explained herein, Kimberlin has not stated a claim as to any of the torts asserted against the Blaze Defendants, nor does he identify any other 27legally cognizable tortious injury that may have occurred. Such failures are independently fatal to Kimberlin’s claim. R Cleaning Impact, Inc. v. Red Robin Int'l Inc., CIV. CCB-12-2368, 2013 WL 1726270, at *1 (D. Md. Apr. 19, 2013) (granting motion to dismiss, noting that “a civil conspiracy claim cannot stand if the object of the conspiracy has not been plausibly alleged”); Aileco, Inc., 340 Mid. at 189, 665 A.2d at 10045 (noting that “‘conspiracy” is not a separate tort capable of independently sustaining an award of damages in the absence of other tortious injury to plaintiff”). E. Kimberlin’s Claim for Punitive Damages Is Inappropriate Because “Punitive Damages” Is a Remedy, Not a Cause of Action. Kimberlin appears to try to state a claim for punitive damages. (See Cplt. § 192.) However, it is well settled that damages are a form of relief, not a cause of action. See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 69 (1992); Shabazz v. Bob Evan Farms, Inc., 163 Md. App. 602, 639, 881 A.2d 1212, 1233 (2005) (under Maryland law “a cause of action does not exist for punitive damages alone”) (citations omitted). The rigid analytical distinetion between “the question whether a litigant has a ‘cause of action’... [and] what relief, if any, a litigant may be entitled to receive” necessitates dismissal where the plaintiff incorrectly confounds the remedy with the cause of action. Davis v, Passman, 442 U.S. 228, 239 (1979). Thus, the “claim” fails. F. This Court Should Impose Sanctions Against Kimberlin for Prosecuting Frivolous Claims Against The Blaze Defendants. Despite having extensive court experience and having been educated on the law throughout the Federal Action, Kimberlin has continued to make repeated, costly, and futile efforts to put up a smokescreen designed to obfuscate the fact that the closest claim 28he could possibly have under the facts alleged against the Blaze Defendants is a stale and meritless defamation claim, and even that claim would fail, as explained above. Sanctions are appropriate to deter Kimberlin from bringing future meritless claims against media entities that may provide a platform for discussing him or his activities See Rodriguez v. Clarke, 400 Md. 39, 926 A.2d 736 (2007) (affirming sanctions against pro se plaintiffs for bringing frivolous claims); Layman v. Layman, 84 Md. App. 183, 578 A.2d 314 (1990) (issuing sanctions against appellant); Blanton v. Equitable Bank, Nat. Ass'n, 61 Md. App. 158, 485 A.2d 694 (1985) (issuing sanctions against plaintifi), IIL KIMBERLIN’S COMPLAINT SEEKS TO INHIBIT FREEDOM OF THE PRESS AND THUS VIOLATES MARYLAND’S ANTI-SLAPP STATUTE As explained above, the target of all of Kimberlin’s claims against the Blaze Defendants is the reporting done on May 25, 2012; specifically, that Mr. Beck provided a platform on his radio/television broadcast for others to talk about Kimberlin, and that The Blaze published material discussing Kimberlin’s background and the claims that, defendants Frey and Walker made during the broadcast. (See Cplt. $Y 76-80, 126.) The Complaint is thus clearly designed to chil free speech and debate about an issue of public concer, rather than to address cognizable injury that Kimberlin genuinely suffered; in other words, itis a strategic lawsuit against public participation (a “SLAPP suit”) Maryland law expressly prohibits SLAPP suits. A lawsuit is a SLAPP suit if itis: (1) brought in bad faith against one who has communicated with a government body ot the public at large to report on or otherwise exercise rights under the First Amendment of the U.S, Constitution or Article 10, 13, of 40 of the Maryland Declaration of Rights regarding any matter within the authority of government or any issue of public concer; 29(2) materially related to the communication; and (3) intended to inbibit or inhibits the exercise of the above-referenced rights. See Md. Code Ann., Cts. & Jud. Proc. § 5-807(b). Based on the fact that he dropped his defamation claims against the Blaze Defendants in this latest phase of his legal campaign, Kimberlin effectively concedes that he is either out of time to seek such relief ar has no meritorious claim. Nonetheless, he hhas concocted wide-ranging and overwrought Complaint that captures the Blaze Defendants in claims that any reasonable person should know could never survive against ‘them under the facts alleged. The claims are missing elements or are contradicted by Kimberlin’s own stated facts. In this context, its clear that Kimberlin’s motivation is to seek redress against a party where none is available as a matter of law, and where all the Blaze Defendants were alleged to have done was exercise their First Amendment rights to report ona matter of public interest. This is not a proper reason for suit and warrants a finding of bad faith. Inlet Assocs. v. Harrison Inn Inlet, Inc. 324 Md. 254, 268, 596 A.2d 1049, 1056 (1991) Gn Maryland, “bad faich” has been judicially defined as “vexatiously, for the purpose of harassment or unreasonable delay, or for other improper reasons.” While the reporting may have opened old wounds or shed light on new alleged acts ~ which Kimberlin may dislike ~ such reporting is vital to freedom of the press, And freedom of the press is exactly what Kimberlin’s lawsuit is aimed at stifling, and exactly ‘what Maryland’s Anti-SLAPP statute is designed to protect. CONCLUSION For the foregoing reasons, Kimberlin’s Complaint should be dismissed with prejudice and an award of fees and costs es to the Blaze Defendants.Dated: New York, New York July 31, 2015 Respectfully submitted, COWAN DeBAETS ABRAHAMS & SHEPPARD, LLP py, fe — Eleanor M. Lackman (pra hae viee) Scott J. Sholder (pra hae vice) 41 Madison Avenue, 34" Floor New York, New York 10010 Tel: (212) 974-7474 Fax: (212) 974-8474 ELackman@edas.com SSholder@cdas.com Mark I. Bailen BAKER & HOSTETLER LLP Washington Square, Suite 1100 1050 Connecticut Avenue, N.18 Washington, DC 20036 Tel: (202) 861-1500 Fax: (202) 861-1763, MBailen@bakerlaw.com Attorneys for defendants The Blaze inc. Mercury Radio Arts, and Glenn BeckCERTIFICATE OF SERVICE I certify that, on this 31st day of July 2015, T served a copy of the foregoing Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction and Failure to State a Claim, with accompanying proposed order, via U.S. first-class mail, postage prepaid, to: Brett Kimberlin 32