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Brett Kimberlin Plaintiff, Vs. National Bloggers Club, et. A.


PWG 13 3059


Defendant Franklin Center’s Reply to Plaintiff’s Response to Franklin Center’s Motion to Dismiss Now comes Defendant Franklin Center by and through their attorneys Linda S. Mericle, P.A. in Reply to Plaintiff’s Response to Defendant Franklin Center’s Motion to Dismiss (ECF 31), states as follows. Time of Filing Defendant Franklin Center was served with a copy of the Plaintiff’s Reply on January 22, 2014. Under LR 105(2)(a) “…all memoranda in opposition to a motion shall be filed within fourteen (14) days of the service of the motion and any reply memoranda within fourteen (14) days after service of the opposition memoranda.” 14 days from the date Defendant was served with the copy is February 5, 2014, therefor Defendant’s deadline to file is February 5, 2014.

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STANDARD OF REVIEW In his introduction section, Plaintiff citied several cases in an attempt to support his argument for standard of review with regards to Motion to Dismiss under Rule 12(b)(6). Most of the cases he has cited have received negative treatment, and all but one of the cases he has cited are at least 39 years old or older. It is clear that the understanding of what is required for a 12(b)(6) motion has changed as the nature of law and the courts have evolved over the past several decades. From the perspective of a 12(b)(6) Motion from the modern perspective, the hones is on the Plaintiff to plead the facts necessary to support their claim. The two cases from within the past decade are Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which "require that complaints in civil actions be alleged with greater specificity than previously was required.” Under Rule 12(b)(6) a complaint be dismissed "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). A satisfactory claim for relief"demand[s] more than an unadorned, the-defendant-unlawfullyharmed- me accusation." Ashcroft v. Iqbal, at 678. A complaint is subject to dismissal under Rule 12(b)( 6) if it merely "offers labels and conclusions or a formulaic recitation of the elements of a cause of action ... [or] if it tenders naked assertions devoid of further factual enhancement." Id. Which is exactly what the Plaintiff did in his complaint. Furthermore, while the court does give a certain amount of deference to parties litigating pro se, this "does not mean that a court can ignore a clear failure in the pleading to allege facts that set forth a claim cognizable in a federal district court." Solomon v. Dawson (D. Md. July 18,2013) case number PWG-13-1951.

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ARGUMENT Throughout his entire argument, the Plaintiff makes many false statements against the defendant Franklin Center which allege “facts” which were not included in his original complaint, nor in his “Amended” complaint. In short, the Plaintiff is attempting to use his response to Franklin Center’s motion to dismiss as a “second bite of the apple” to assert facts not included, without having to file a Motion for Leave to amend with the court in order to amend his complaint. Such assertions are inappropriate for a response to the motions, however even if the facts were included, they still would not constitute the facts necessary to support his allegations. I. Plaintiff did not address deficiencies in his RICO claim under 18 U.S.C. §§1961-1968

In his entire complaint and in his response to the motion to dismiss, Plaintiff accuses Franklin Center of committing only two acts, period. 1) He accuses Franklin Center of advertising for an educational webinar on the subject of SWATing, based on a “false narrative”, and 2) Accuses Franklin Center of conducting said webinar. In order to establish a pattern of activity under 18 U.S.C. § 1961(5), Plaintiff must allege “at least two acts of racketeering activity”. Plaintiff does indeed allege two acts, but neither of them could even remotely be considered racketeering activity. Nowhere in his actions does he state that any of the actions of Franklin Center were even illegal, nor were there any allegations that Franklin Center induced anyone to participate in any predicated activities under the statute. The only possible illegal activity contained in any of the pleadings against Franklin Center are the “threats” contained in the exhibits attached to the Plaintiff’s Response to Franklin Center’s Motion to Dismiss. (Plaintiff’s Response: Exhibits 1). None of these individuals allegedly “making threats” are alleged to be members of the RICO Enterprise, nor are they parties to this lawsuit. Therefor the Page 3

court cannot conclude under the facts alleged that these threats are made by members of the RICO Enterprise, including Defendant Franklin Center. Secondly, even if the court were to construe that acts committed by others in the “enterprise” construed “Racketeering” activity, Plaintiff has insufficiently claimed that Franklin Center was even a part of the Enterprise. Plaintiff instead asserts conclusory statements stating that the Defendant “… joined the RICO Enterprise in order to enhance its goal of destroying Plaintiff’s livelihood” (Plantiff’s Response, ¶ 12), but in no way alleges any fact that shows that the Enterprise existed, or that Franklin Center was involved, nor has he filed any Exhibits which support his conclusory statements. There are no allegations of Defendant Franklin Center meeting with any other Defendants to conspire against him. He does not allege that Franklin Center participated in any crimes against him. He does not even allege that any of the other defendants even participated in the webinar. His only two factual allegations against Franklin Center are that they advertised a webinar, and that they conducted a webinar. The Iqbal standard is clear. In order to survive a Motion to Dismiss, “… a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 678. In this case, the Plaintiff has failed to allege factual material sufficient to show that the Franklin Center was part of a RICO enterprise, or that Franklin Center influenced or participated in any predicated events necessary to support a RICO action. II. Plaintiff fails to allege facts to support his claim under 42 U.SC. 1983

In his response, Plaintiff does offer any repudiation of Defendant Franklin Center’s argument concerning this claim as it applies to Franklin Center. III. Plaintiff failed to allege facts to support his claim under 42 U.S.C. 1985

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The only statement made by the Plaintiff with regards to the 42 U.S.C. 1985 claim is that his claim is sufficient because “he has alleged that The Center joined in the conspiracy to violate his civil rights by falsely accusing him of serious crimes which was intended to have him arrested and imprisoned” First, the statement is conclusory in that it states that the Defendant intended to have him arrested and imprisoned. This is not the case. The information published was an advertisement for a webinar. There was no stated goal or call to action to have him arrested or imprisoned in fact imprisonment was not even mentioned in the advertisement, so his conclusory statement is not supported by the allegations he has made in his Complaint or in his Response to the Motion to dismiss. Second the Plaintiff’s allegations fall outside the scope of a §1985 claim. In order to establish a claim for conspiracy under the act, Plaintiff must allege the conspiracy not only must have as its purpose the deprivation of "equal protection of the laws, or of equal privileges and immunities under the laws," but also must be motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Carpenters v. Scott, 463 U.S. 829 (1983) quoting Griffin v. Breckenridge, 403 U. S. 88, 403 U. S. 102-103 (1971). Plaintiff has failed to allege that the alleged conspiracy had any animus based in class or race, therefor the claim should be dismissed. IV. Plaintiff has withdrawn allegation of fraud and misrepresentation

In his response to Plaintiff’s Motion to dismiss, the Plaintiff has withdrawn his allegation of Fraud and Misrepresentation (Plaintiff’s Response ¶ 14). V. Plaintiff fails to support an argument against Defendant’s Statute of Limitation Defense to Defamation

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Plaintiff in his response does not address Plaintiff’s argument that the Defendant failed to state a claim. Plaintiff states in his response that the statute of limitations does not apply because “(1) The Center’s long relationship and conspiracy with Defendant Akbar and Defendant National Bloggers Club which has repeated these false allegations within one year SOL; (2) Plaintiff was threatened with physical harm and death if he went to court or talked to the authorities thereby tolling the SOL.” (Plaintiff’s Response ¶ 10) Plaintiff offers no case or statutory law to support his conclusions, nor does he allege that Franklin Center perpetrated or was otherwise involved in any threat. The only threat concerning alleged in the facts was a specific threat to show up on a specific court date, and had nothing to do with the case present. (Plaintiff’s Response Ex. A) In fact, case law supports Franklin Centers statute of limitations argument. Maryland has adopted the single publication rule. Hickey v. St. Martin’s Press, Inc. 978 F.Supp. 230 (1997). Under the single publication rule only one action for damages can be maintained as to any single publication. Id. at 239. The result of this is republications by other parties are not actionable. The publication by Franklin Center was on June 26, 2012. (Amended Complaint ¶ 95, Exhibit A). The complaint was filed on or around October 1, 2013, which is more than one year removed from June 26, 2012. This claim is therefore barred by statute of limitations. VI. Plaintiff fails to support his claim for False Light

In his response pleading, Plaintiff merely states that he presented sufficient facts to meet the elements of false light, but fails to actually allege those specific facts necessary to support his claim. (Plaintiff’s Response ¶ 11) Maryland Law treats false light in a similar matter as to defamation, in fact, "the Fourth Circuit, interpreting Maryland law, has refused to allow a claim for false light invasion of

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privacy to stand where the claim failed to meet the standards for defamation.” Dobkin v. Johns Hopkins Univ., 1996 U.S. Dist. LEXlS 6445, 37 (D. Md. Apr. 17, 1996). Plaintiff has not challenged the Defendant’s assertion that the Plaintiff has failed to meet the standards for defamation. Furthermore the court has gone so far with the analogous claim between defamation and false light, that the court has adopted the Statute of Limitations for Defamation and has applied it to false light where it is an analogous claim. Smith v. Esquire, Inc., 494 F.Supp. 967,969 (D. MD, 1980), holds that when "a false light claim is essentially analogous to a libel claim ... [it] should be governed by the same statute of limitations” “To hold otherwise would allow a plaintiff, in any defamation action where there has been a general publication, to avoid the otherwise applicable one-year statute merely by phrasing the cause of action in terms of invasion of privacy.” Id. at 970. So therefore under current precedent, the claim for false light is barred under the Statute of Limitations and should be dismissed. VII. Plaintiff failed to allege facts to support a claim for Intentional Infliction of Emotional Distress.

Plaintiff has failed to show the facts necessary to support a claim for Intentional Infliction of Emotional Distress. In Maryland, a plaintiff must allege "(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe." Mitchell v. Baltimore Sun Co., 164 Md. App. 497, 883 A.2d 1008, 1024 (Md. Ct. Spec. App. 2005) In order to prevail, the Plaintiff must prove all elements. Even if severe emotional distress results from the conduct, the plaintiff cannot set forth an IIED claim without proof that the conduct was indeed extreme and outrageous. Interphase Garment Solutions, LLC v. Fox Page 7

Television Stations, Inc., 566 F. Supp. 2d 460, 466 (D. Md. 2008). Interphase Garment is a case that is analogous to the case at hand. In Interphase Garment, this court ruled that a false television report did not constitute extreme and outrageous conduct, even when the Plaintiff suffered stress enough to warrant several hospital visits. Likewise, a single press release and the hosting of a webinar cannot constitute extreme and outrageous conduct under the Interphase Garment standard. In order for a plaintiff to prevail, the conduct in question must be “so outrageous in character, and so extreme in degree,” to be considered “opprobrious behavior” and “utterly intolerable in a civilized community.” Hines v.French, 852 A.2d 1047, 1060 (Md. 2004). Far from proving all elements, Plaintiff fails to even allege all elements. He has failed to allege the emotional distress suffered. It is not enough to just to allege that they suffered emotional distress. One of the claims that the Plaintiff states is Extreme and Outrageous Conduct is the allegation that he has filed over 100 lawsuits. (Plaintiff’s Response, ¶ 15) However, that allegation came from the Plaintiff’s own words. In an email to Defendant Frey on October 10, 2010, the Plaintiff stated “I have filed over a hundred lawsuits and another one will be no sweat for me.” This statement was posted on Defendant Frey’s blog http://patterico.com/2010/10/11/brett-kimberlin-threatens-to-sue-me. Plaintiff has not challenged the veracity of Defendant Frey’s quotation of Plaintiff’s email. So it cannot be considered outrageous conduct if the Defendant is merely repeating a claim stated by the Plaintiff who has presented it as a fact. The fact that Franklin Center has not taken down the information on the website is irrelevant to the question of extreme and outrageous conduct. Franklin Center at no point received a takedown or retraction/correction request from the Plaintiff. Furthermore, after the

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lawsuit has been filed, removing such material without a request could be construed by the Plaintiff as either a) an admission of bad conduct, or b) an attempt to obstruct justice by concealing evidence. Furthermore, Plaintiff has failed to allege any emotional distress incurred by him as result of the conduct of Franklin Center. He has not alleged any hospital visits, psychological effects, nor has he alleged that he has sought treatment from medical professionals nor alleged being prescribed any medication to treat any emotional distress. Because the Plaintiff has failed show the facts necessary to support a claim for Intentional Infliction of Emotional Distress, this claim should be dismissed. CONCLUSION Defendant Franklin Center respectfully requests this court to dismiss Plaintiff’s First, Second, Third, Fourth, Fifth, Sixth, and Seventh claims for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. With regards to the First Claim, Plaintiff has failed to address the deficiencies in his RICO claim under 18 U.S.C. §1961, therefore this claim should be dismissed. With regards to the second claim, Plaintiff has offered no argument in response to Plaintiff’s motion to dismiss, therefore this claim should be dismissed. With regards to the third claim, Plaintiff has failed to show sufficient facts to state a claim under 42 U.S.C. § 1985, and has failed to state that this claim falls under the scope of 42 U.S.C. §1985, therefore this claim should be dismissed. With regards to the fourth claim, Plaintiff has voluntarily withdrawn his allegations, therefore this claim should be dismissed. With regards to the fifth claim, Plaintiff fails to support his claim that the statute of limitations does not apply, furthermore Plaintiff has offered no argument in response to Defendants argument that the Plaintiff has failed to state a claim for fraud, therefore this claim should be dismissed. With regards to the sixth claim,

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Defendant has failed to support his claim for False Light as he has failed to show that his false light claim meets the standards for defamation, furthermore the Statute of Limitations on this claim has run. Therefore, this claim should be dismissed. With regards to the seventh claim, Plaintiff has failed to allege facts necessary to support a claim for Intentional Infliction of Emotional Distress, therefore this claim should be dismissed. PRAYER FOR RELIEF Defendant Franklin Center, having stated its support for their motion to dismiss, prays for relief as follows: 1. An Order dismissing this case with prejudice

2. An Order granting Attorney’s and Costs 3. An Order enjoining Plaintiff from filing any frivolous and meritless lawsuits against Plaintiff without first receiving permission from the court vis-à-vis obtaining approval from a court appointed special master or by posting bond to cover fees and costs should such a claim be dismissed; 4. Any other such relief this court deems fit and proper. Respectfully Submitted, ________/s/___________ LINDA S. MERICLE, Esq. Linda S. Mericle, P.A. 7600 Hanover Parkway, Ste. 202 Greenbelt, MD 20905 Federal Bar #:09685 Local Counsel for Defendant, The Franklin Center Phone: (301) 474-2044 Fax: (301) 861-0826

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I certify that on the 5th day of February, 2014, I served copies of this document on the following: Parties via U. S. Mail or email as noted: Brett Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817 Michael Smith, Esq., for Michelle Malkin and non-party Twitchy at smith@smithpllc.com Mark Bailen, Esq., for Erick Erickson, Redstate, Simon & Schuster, Glen Beck, Mercury Radio Arts, The Blaze, and James O'Keefe at mbailen@bakerlaw.com Lee Stranahan at stranahan@gmail.com Mandy Nagy at libertvchickblog@gmail.com Breitbart.com at Loconnor@breitbart.com and Larrv@breitbart.com National Bloggers Club and Ali Akbar at ali@blogbash.com Ace of Spades at aceofspadeshq@gmail.com Patrick Frey at patterico@gmail.com DB Capitol Strategies at DBacker@DBCapitoIStrategies.com Robert Stacy McCain at rs.mccain@att.net Kimberlin Unmasked at kimberlinunmask@hush.com Aaron Walker at amdwalker30349@hotmail.com William Hoge III at himself@hogewash.com

_____________/s/____________________________ One of Their Attorneys

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