UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

BRETT KIMBERLIN, Plaintiff v. NATIONAL BLOGGERS CLUB, et al., Defendants Case No. PWG 13-3059

REPLY TO PLAINTIFF’S OPPOSITION TO WALKER’S MOTION TO DISMISS

TABLE OF CONTENTS

INTRODUCTION I.

1

THE PLAINTIFF DOESN’T ADDRESS BASIC DEFICIENCIES IN HIS CLAIMS UNDER RICO, 42 U.S.C. §1983 OR §1985, OR ANY OF HIS STATE LAW CLAIMS AND THEREFORE THIS CASE SHOULD BE DISMISSED WITH PREJUDICE 2 THE PLAINTIFF’S OPPOSITIONS DO NOT REHABILITATE HIS RICO CLAIMS A. 4

II.

The Plaintiff Does Not Properly Allege That He Was Injured in his Business or Property By the Alleged Racketeering Activities 4 The Plaintiff Doesn’t Properly Allege that the Defendants Committed Any Predicate Act 6 1. The Plaintiff Doesn’t Allege that the Defendants Attempted to Obstruct the Operation of Any Federal Court in violation of 18 U.S.C. §1503 6 The Plaintiff Doesn’t Allege that He Was Harmed in his Employment Under 18 7 U.S.C. §1513 The Plaintiff Doesn’t Allege a Violation of 18 U.S.C. §1512 10

B.

2.

3. C.

The Plaintiff Doesn’t Properly Allege that the Predicate Acts Amount to a “Pattern of 13 Racketeering Activity” The Plaintiff Doesn’t Properly Allege that an Enterprise Exists 15

D. III.

THE PLAINTIFF DOESN’T ALLEGE AN INVIDIOUSLY DISCRIMINATORY MOTIVE OR A FEDERAL NEXUS AND THEREFORE HE HAS NOT ALLEGED A VIOLATION OF 42 U.S.C. §1985(2) OR (3) 17 THE PLAINTIFF HAS NOT ALLEGED THAT DEFENDANT FREY ACTED UNDER COLOR OF STATE LAW TO DEPRIVE HIM OF A FEDERAL RIGHT AS REQUIRED UNDER 42 U.S.C. §1983 18 THIS COURT SHOULD DISMISS THIS CASE UNDER THE COLORADO RIVER 24 DOCTRINE OF ABSTENTION THE PLAINTIFF HAS NOT PROPERLY ALLEGED A CLAIM FOR FALSE LIGHT OR DEFAMATION WITHIN THE STATUTE OF LIMITATIONS 26 ii

IV.

V.

VI.

VII.

THE PLAINTIFF DOES NOT ALLEGE ANY INJURY DUE TO EMOTIONAL DISTRESS OR EVEN THAT HE HAS FELT ANY EMOTIONAL DISTRESS 29 30

CONCLUSION

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TABLE OF AUTHORITIES
FEDERAL CASES 180S, INC. v. Gordini USA, Inc., 602 F.Supp.2d 635 (D. Md. 2009) Al-Abood v. El-Shamari, 217 F.3d 225 (4th Cir. 2000) Arthur Andersen LLP v. U.S., 544 U.S. 696 (2005) Ashcroft v. Iqbal, 556 U.S. 662 (2009) Beck v. Prupis, 529 U.S. 494 (2000) Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) Bhari Info. Tech. Sys. Private, Ltd. v. Sriram, 2013 U.S. Dist. LEXIS 169622 (D. Md. 2013) Brandenburg v. Ohio, 395 U.S. 444 (1969) Cardillo v. Doubleday & Co., Inc., 518 F.2d 638 (2nd Cir. 1975) Carpenters v. Scott, 463 U.S. 825 (1983) Colorado River Water Cons. Dist. v. U.S., 424 U.S. 800 (1976) Colson v. Grohman, 174 F.3d 498 (5th Cir. 1999) Conley v. Gibson, 355 U.S. 41 (1957) Crandon v. United States, 494 U.S. 152 (1990) Griffin v. Breckinridge, 403 U.S. 88 (1971) Griffin v. Maryland, 378 U.S. 130 (1964) Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994) Kimberlin v. Dewalt, 12 F.Supp.2d 487 (D. Md. 1998) Kimberlin v. White,7 F.3d 527 (6th Cir. 1993) Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006) iv 2 14 10 1, 9, 15-17, 20, 25 5 1 1 8, 13, 30 29 18 25 23 1 12 18 22 8 2 29 2

Loren Data Corp. v. GXS, Inc. (D. Md. August 30, 2011) case number DKC 10-3474 Naffe v. Frey et al. (C.D. Cal. 2012) case number 2:12-cv-08443-GW-MRW Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342 (3rd Cir. 1989) Potomac Elec. Power v. Electric Motor & Supply, 262 F.3d 260 (4th Cir. 2001) Public Citizen v. D.O.J., 491 U.S 440 (1989) Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) Smith v. Esquire, Inc., 494 F.Supp. 967 (D. MD, 1980) Solomon v. Dawson (D. Md. July 18, 2013) case number PWG-13-1951 Sterling v. Ourisman Chevrolet of Bowie Inc., 943 F.Supp.2d 577 (D. Md. 2013) Suarez Corp. Industries v. McGraw, 202 F.3d 676 (4th Cir. 2000) U.S. v. Aguilar, 515 U.S. 593 (1995) U.S. v. Aragon, 983 F.2d 1306 (4th Cir. 1993) U.S. v. Ardito, 782 F.2d 358 (2nd Cir. 1986) U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992) U.S. v. Cassidy, 814 F.Supp.2d 574 (2011) U.S. v. Darby, 37 F.3d 1059 (4th Cir. 1994) U.S. v. Dunn, 434 F.Supp.2d 1203 (M.D. Ala. 2006) U.S. v. Wright (S.D. Ala. February 8, 2012) case number 11-0262-WS Virginia v Black, 538 U.S. 343 (2003) Walters v. McMahen, 684 F.3d 435 (4th Cir., 2012) Wang Laboratories, Inc. v. Burts, 612 F.Supp. 441 (D. Md. 1984) West v. Adkins, 487 U.S. 42 (1988) v

1 18 4 5 13 4 27 3 1 22-23 7 6 6 24 11-12 19 10 9 13, 28 1 5, 14 18

FEDERAL STATUTES 18 U.S.C. §875(c) 18 U.S.C. §1341 18 U.S.C. §1343 18 U.S.C. §1503 18 U.S.C. §1510 18 U.S.C. §1511 18 U.S.C. §1512 18 U.S.C. §1512(b) 18 U.S.C. §1512(d) 18 U.S.C. §1512(k) 18 U.S.C. §1513 18 U.S.C. §1513(a) 18 U.S.C. §1513(b) 18 U.S.C. §1513(e) 18 U.S.C. §1514(d)(1) 18 U.S.C. §1951 18 U.S.C. §1957 18 U.S.C. §1961(1) 18 U.S.C. §1962(c) 18 U.S.C. §1962(d) vi 19 2 2 6-7 2 2 10, 13 10 11, 13 13 7 7 7 7-10 11 2, 4 3 2-3 passim 3, 5

18 U.S.C. §1964(c) 28 U.S.C. §1367(c)(4) 42 U.S.C. §1983 42 U.S.C. §1985 42 U.S.C. §1985(2) 42 U.S.C. §1985(3) 42 U.S.C. §12102(1)

4-5 3 2, 18, 22-24 2, 17-18 17-18, 31 17-18, 31 24

FEDERAL RULES Fed. R. Civ. P. 12(b)(6) 1

STATE CASES Allen v. Bethlehem Steel Corp., 76 Md. App. 642 (1988) Dickerson v. State, 324 Md. 163 (1991) Kimberlin v. Walker (I) (Md. Mont. Co. Dist. Ct. 2012) case number 0601SP005392012 Murphy v. Merzbacher, 346 Md. 525 (1997) Womack v. Eldridge, 215 Va. 338 (1974) 27 27 6 28 30

WEBSITES CR, Mick Jagger Gets to Say “S___” on TV and Sing About Mitt Romney, CR’S BLOG, May 21, 2012 (available at http://www.jtmp.org/jtmp/node/352) visited January 31, 2014 (curse word censored) 20

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William Safire, “The Way We Live Now: 1-23-00: On Language; Don't Go There,” The New York Times, January 23, 2000 (available at http://www.nytimes.com/2000/01/23/magazine/the-way-we-livenow-1-23-00-on-language-don-t-go-there.html) visited January 29, 2014 19

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INTRODUCTION Defendant Walker’s Motion to Dismiss should be granted and in the interest of judicial economy, it should be granted to all parties, whether they have been served and/or have appeared, or not. The Memorandum of Points and Authorities in Support of Defendant Walker’s Motion to Dismiss (“Walker Memorandum”) pointed out massive gaps in the Plaintiff’s attempt to make out his claims that applied to all parties, which the Plaintiff has failed to fill. The Plaintiff cites numerous cases to the effect that a complaint doesn’t have to meet a high bar to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), such as Conley v. Gibson, 355 U.S. 41 (1957). The law related to the sufficiency of complaints has changed significantly since those days. This court is rightfully guided by more modern precedents such as 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.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012). This reply will not recite the liturgy of the standard for evaluating a Rule 12(b)(6) motion to dismiss that this court is extremely familiar with, see, e.g. Sterling v. Ourisman Chevrolet of Bowie Inc., 943 F.Supp.2d 577, 584-585 (D. Md. 2013), but the Plaintiff has failed to meet those pleading standards, and, therefore, the Amended Complaint should be dismissed. Further, this court should also grant that dismissal with prejudice. As this court noted in Bhari Info. Tech. Sys. Private, Ltd. v. Sriram, 2013 U.S. Dist. LEXIS 169622, *13 n.2 (D. Md. 2013), “[t]he determination whether to dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court.” When determining whether to dismiss a claim with prejudice, “courts apply the same standard as if a motion for leave to amend [had] been filed.” Loren Data Corp. v. GXS, Inc. (D. Md. August 30, 2011) case number DKC 10-3474 (internal quotation marks omitted). Accordingly, just

as leave to amend should be denied when a Plaintiff has demonstrated bad faith, Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006), a motion to dismiss with prejudice should be granted when bad faith is shown, 180S, INC. v. Gordini USA, Inc., 602 F.Supp.2d 635, 639 (D. Md. 2009). Not only has this court previously found this same Plaintiff to have acted in bad faith,1 but his bad faith in this case is demonstrated in Mr. Walker’s accompanying Motion to Strike pp. 4-22. For the reasons stated therein, this court should find that the Plaintiff has acted in bad faith and dismiss the instant case with prejudice. I. THE PLAINTIFF DOESN’T ADDRESS BASIC DEFICIENCIES IN HIS CLAIMS UNDER RICO, 42 U.S.C. §1983 OR §1985, OR ANY OF HIS STATE LAW CLAIMS AND THEREFORE THIS CASE SHOULD BE DISMISSED WITH PREJUDICE It is worthwhile to start with the points that the Plaintiff is not even contesting. First, the Plaintiff has withdrawn his state law claims for Fraud or Negligent Misrepresentation. Second, addressing predicate offenses under 18 U.S.C. §1961(1) the Plaintiff is not even contesting that he failed to even allege a violation of 18 U.S.C. §§1510 and 1511. Presumably, the Plaintiff’s failure to even address these claims is meant as a sub silento withdrawal of them. Third, the Plaintiff doesn’t deny that he has failed to allege the proper kind of wrongful inducement needed to commit extortion under §1951. A peaceable attempt at a settlement doesn’t count. Fourth, the Plaintiff has not disputed that there are fatal flaws in his pleadings related to Mail and Wire Fraud under 18 U.S.C. §§1341 and 1343. While he claims he has properly pled fraud, he makes no effort to dispute that he was required to allege that the supposedly false statements were material, made

See Kimberlin v. Dewalt, 12 F.Supp.2d 487, 494, 495 (D. Md 1998) (stating that Kimberlin’s “settlement offers were not undertaken in good faith” and “that [d]espite his high earnings, [Kimberlin] failed to show any good faith by paying his crime victim”). 2

1

with the intent to deceive another and inducing justifiable reliance in anyone, and he makes no effort to show that he has alleged those elements at all. While some deference is ordinarily due to a pro se litigant, 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. These fundamental failures plague every single claim of mail and wire fraud made by the Plaintiff, and, therefore, none of these claims can serve as a predicate offense under §1961(1). Fifth, the Plaintiff continues to allege that defendants committed money laundering under §1957, but continues to fail to address basic elements of the offense. Specifically, the Plaintiff didn’t allege that the person making the transactions did so knowing they were derived from unlawful activity, or that they made such transactions in the United States, or that the person doing so is a United States person. He doesn’t even specify who actually made the transactions. Likewise, the Amended Complaint only made conclusory allegations that the transactions involved property of a value greater than $10,000, and the Plaintiff admits he has no way of knowing anything about those transactions. The Plaintiff doesn’t deny that he must properly allege these elements, or demonstrate he had alleged them, but instead hopes that this court will not notice these problems. Sixth, the Plaintiff has not contested—except in the most cursory fashion—that he has failed to make out any of the elements under §1962(d) relating to a conspiracy to commit a violation of §1962(c). The Plaintiff apparently believes that he can make out a claim for conspiracy under §1962(d) by merely inserting the word “conspired” now and then. This court should disabuse him of that notion. Seventh, the Plaintiff does not dispute that this court should decline to exercise supplemental jurisdiction in the interests of justice under 28 U.S.C. §1367(c)(4). 3

Combined, these seven points fairly devastate the Plaintiff’s case just by his failure to even dispute Defendant Walker’s points of law. Meanwhile, to the extent that the Plaintiff does dispute the deficiencies pointed out by the Motion to Dismiss, the Plaintiff fails to provide any valid reason why his suit should not be dismissed and, amazingly, supplies the court with a new reason to do so. II. THE PLAINTIFF’S OPPOSITIONS DO NOT REHABILITATE HIS RICO CLAIMS The Plaintiff expends some effort attempting to rehabilitate his RICO claims, attempting to address some of the many flaws in his Amended Complaint, but fails in this attempt. A. The Plaintiff Does Not Properly Allege That He Was Injured in his Business or Property By the Alleged Racketeering Activities. First, the Plaintiff does not dispute that he has suffered absolutely no adverse employment actions because of the alleged Racketeering Activities. He does not claim that he was fired, demoted, passed over for a promotion or that he even suffered a pay cut. While he complains repeatedly about the alleged attempt by DB Capital Strategies to have the Plaintiff dismissed from his job, he does not dispute that it was only an attempt. Mere attempts to cause harm is not sufficient under §1964(c). Second, the Plaintiff admits that the “lost... funding opportunities” mentioned in his Amended Complaint (¶ 153) referred only to lost funding opportunities for his non-profits, “Plaintiff’s Response to Defendant DB Capital Strategies’ Motion to Dismiss” (“Opp. to DBCS”) ¶ 8. These are not his losses. The Plaintiff tries to evade this limitation by citing Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342 (3rd Cir. 1989). But McMonagle was overturned by Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003), a case cited in the Walker Memorandum. Under Scheidler, when a RICO case involves a claim of a loss of property under 18 U.S.C. §1951, that the property must be “something of value” that the alleged extortionist can “obtain” and, therefore, 4

“exercise, transfer or sell.” Id. at 405. It does not include simply denying a thing to another person or corporation, whether it is employment opportunities or funding opportunities for his corporations. With some desperation, the Plaintiff cites a lone district court case, Wang Laboratories, Inc. v. Burts, 612 F.Supp. 441 (D. Md. 1984) as stating that “Wang's allegations of injury to its business reputation and customer goodwill in addition to its loss of revenues satisfied the injury requirement of 18 U.S.C. § 1964(c).” Wang does not stand for the proposition that injury to business reputation alone, without showing that it actually caused damages, is sufficient to convey standing. While injury to one’s business reputation might lead to injury to one’s business, it is not in and of itself an injury (and it might not be the proximate cause of such injury). Even in the law of defamation it is not sufficient to prove that one’s reputation had been damaged alone. Instead, it is necessary to show that one had been harmed by damage to one’s reputation. Under RICO, damages for emotional suffering or mere harm to reputation alone are not recoverable; the plaintiff must allege actual damage to his business or property. Finally, the Plaintiff cites Potomac Elec. Power v. Electric Motor & Supply, 262 F.3d 260 (4th Cir. 2001) for the proposition that nominal damages are sufficient. This argument fails for two reasons. First, the Potomac Electric court still imposed upon a RICO Plaintiff the “requirement ... of proving some damages, not a specific amount.” Id. at 266. The Plaintiff has alleged absolutely no damages. Second, the Potomac Electric court said specifically that the possibility of recovering attorney’s fees justified upholding an award of nominal damages. This Plaintiff is pro se. Having failed to properly allege that he was injured by any predicate act under RICO, the Plaintiff lacks standing to sue for any violation of RICO, Beck v. Prupis, 529 U.S. 494 (2000), and, therefore, Plaintiff’s RICO claims (under §1962(c) or (d)) should be dismissed with prejudice as to Defendant Walker, and—in the name of judicial economy—for all other Defendants as well. 5

B.

The Plaintiff Doesn’t Properly Allege that the Defendants Committed Any Predicate Act. As noted above, the Plaintiff does not contest the fact that he did not properly allege many

predicate offenses. Meanwhile, to the extent that he does continue to attempt to claim he has met his burden in properly alleging two or more predicate acts, he fails in every instance. 1. The Plaintiff Doesn’t Allege that the Defendants Attempted to Obstruct the Operation of Any Federal Court in violation of 18 U.S.C. §1503. Defendant Walker’s memorandum pointed out that in relation to the Plaintiff’s §1503, that “[t]he Plaintiff has failed to even allege... the Defendants’ alleged conduct had any relation to any federal case at all” as required by the statute. Walker Memorandum, p. 10. U.S. v. Ardito, 782 F.2d 358 (2nd Cir. 1986)—which was cited favorably in this circuit in U.S. v. Aragon, 983 F.2d 1306 (4th Cir. 1993)—is illustrative of that point. In Ardito, several defendants were convicted under the “omnibus clause” of §1503 for engaging in a scheme to disrupt a federal criminal case by faking illness. The court was faced with the question of whether the prosecutor must prove that the defendants knew that they were obstructing a federal, not state, proceeding. Logically this would not have been a relevant question if the statute applied to obstruction of state proceedings, too. The Ardito court held that while the conduct must be intended to disrupt a federal proceeding, it is not necessary to prove that the defendants knew they were disrupting a federal, not state, proceeding. The Plaintiff doesn’t make any non-conclusory allegations of any threats, violence or corrupt action by the Defendants related to any federal proceeding. He claims that he was assaulted in a Maryland state courthouse2 but doesn’t allege that it was related to any federal proceeding. Given that it

The Plaintiff doesn’t dispute that his claim that Mr. Walker assaulted him is barred by collateral estoppel. Attached as Exhibit A is a certified copy of three documents from Peace Order case that Mr. Kimberlin filed against Mr. Walker. Kimberlin v. Walker (I) (Md. Mont. Co. Dist. Ct. 2012) case 6

2

allegedly occurred in a state courthouse, just after a hearing in that courthouse, and the Plaintiff doesn’t allege that there was any federal case pending at the time, the natural inference is that if there was any assault it was related to a state, not federal, case. The Plaintiff also claims that third parties threatened him, asserting, for instance, in “Plaintiff’s Response to Defendants Hoge and Walker’s Motion to Dismiss,” (“Opp. to H&W”) ¶ 27 that the Defendants “intimidated Plaintiff by engaging in conduct that resulted in him being repeatedly threatened” (emphasis added) by third parties who, oddly, are not named in this suit, but the Plaintiff doesn’t make any non-conclusory allegations that any Defendant physically threatened him. “Threatening” to send him back to prison again, meanwhile, is not the kind of threats covered by the statute, nor is saying negative, but non-threatening, things about him on the internet, even if those statements are untrue. He also does not claim that any federal proceeding was pending when the Defendants allegedly lied to the FBI and members of Congress. See U.S. v. Aguilar, 515 U.S. 593, 600 (1995) (holding that false statements to an investigator who might or might not testify before a grand jury is not sufficient under §1503). Simply put, §1503 does not relate to what the Plaintiff is claiming the Defendants actually did and, therefore, cannot be considered a predicate act 2. The Plaintiff Doesn’t Allege that He Was Harmed in his Employment Under 18 U.S.C. §1513. The Plaintiff has ceased to allege any violations of §1513(a) or (b) and has, for the first time, asserted that the Defendants have violated subsection (e) which states that: number 0601SP005392012. They are in reverse chronological order because that is how the items were docketed. The fourth page where Mr. Kimberlin filed a petition for a peace order claiming harassment and assault. The third page represents a temporary peace order issued ex parte and on January 9, 2012, which represents a finding that Mr. Walker assaulted and had harassed the Plaintiff. The second page is the determination of the court, after an adversarial hearing, only finding that Mr. Walker harassed Mr. Kimberlin, but no longer finding Mr. Walker had assaulted him. Combined, these rulings represent a judicial determination that Mr. Walker had not assaulted Mr. Kimberlin. (The finding of harassment was vacated on appeal). Accordingly, Mr. Kimberlin is collaterally estopped from claiming Mr. Walker assaulted him. 7

Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both. (emphasis added.) The Plaintiff, therefore, alleges that various actions by the Defendants have violated that provision by interfering with his employment. The most obvious problem with this claim is that the Plaintiff does not claim that he was actually harmed in his employment or livelihood in any way, and the statute noticeably does not punish the mere “attempt” to harm a person in this respect. As noted above, when discussing injury, he doesn’t claim to have suffered any adverse employment action. So in what exact way has the Plaintiff been harmed? Second, the Plaintiff has not alleged any action by the Defendants. While no court has defined the term “action” in §1513(e), Black’s Law Dictionary defines “action” (when it is not referring to a lawsuit) as “Conduct; behavior; something done; the condition of acting; an act or series of acts.” BLACK’S LAW DICTIONARY 28 (6th ed. 1990). Words are not typically seen as action. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), (stating that the state can forbid words when they are “directed to inciting or producing imminent lawless action” (emphasis added)). Indeed, the few

instances where words are seen as actions—such as the formation of a contract, a criminal putting a “hit” on another person, or even firing an employee from a job—they are differentiated from ordinary speech by being referred to as “verbal acts.” See, e.g., Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 540 (5th Cir. 1994). Meanwhile his claim that the filing of lawsuits violates this section is insufficient because Congress obviously did not intend to make a lawsuit a criminal act. Indeed, the Plaintiff absurdly claims that filings in this case are part of continued criminal conduct, Opp. to DBCS ¶25 (claiming DBCS’s request for relief amounts to intimidation and obstruction), as though the 8

peaceable defense of a suit could be properly characterized as a crime. Third, his allegations that this relates to his giving of information is too vague. In U.S. v. Wright (S.D. Ala. February 8, 2012) case number 11-0262-WS, an indictment under §1513(e) was thrown out in part because “[t]he indictment does not identify the truthful information provided by the witness and does not identify any federal offense to the possible commission of which the truthful information relates.” The Plaintiff’s Amended Complaint, and even his improperly added allegations, do not meet this requirement. Finally, the allegation is not plausible. The only clue that the Plaintiff gives to what information was given is that it relates to SWATting. What exactly did he say to the FBI that would supposedly inspire such anger? That he denied involvement? Any person of reasonable intelligence would

understand that the Plaintiff would probably deny involvement regardless of actual guilt. The idea that the Defendants would fly into a rage because he dared to deny guilt is not plausible. Further, if the Defendants didn’t want the FBI to speak to the Plaintiff, they have a funny way of showing it. According to the Plaintiff, the Defendants have falsely and publicly accused him of SWATting (or implied he was involved). They have falsely told (implied to) Congresspersons that he was responsible, prompting a letter from 87 Congresspersons seeking an investigation. He has claimed that Defendant Frey has wanted him to be arrested and that he and many of the Defendants want him sent back to prison again. Does any person of common intelligence think that the government will arrest, try, and convict any person without at least talking to him and getting his side of the story? In Ashcroft v. Iqbal, 556 U.S. at 678 (2009) the Supreme Court declared that “[t]o 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.’” Further, the Iqbal court explained that a court such as this must 9

“draw on its judicial experience and common sense” when making that determination. Id. at 689. The Plaintiff claims that the retaliation was inspired by speaking with the FBI about SWATting, but then alleges that the Defendants engaged in conduct that any person of common intelligence would see as assuring that the Plaintiff would speak to the FBI about SWATtings. This is not plausible. For all of these reasons as well as those stated in the Walker Memorandum, the Plaintiff has failed to allege a violation of §1513. 3. The Plaintiff Doesn’t Allege a Violation of 18 U.S.C. §1512. The Plaintiff’s Opp. to H&W presents, for the first time, the argument that the Defendants have engaged in several new predicate acts under §1512. However, unsurprisingly, having failed to even cite the statute in the complaint, the Plaintiff has failed to properly allege a violation of it. First, the Plaintiff claims in Opp. to H&W ¶ 26 that by allegedly lying to congresspersons the Defendants also violated §1512(b) “which includes engaging ‘in misleading conduct toward another person, with intent to influence, delay, or prevent the testimony of any person in an official proceeding, which [sic] includes ‘a proceeding before Congress.” The plaintiff does not make any non-conclusory allegation that any Defendant has done that. The only acts he alleges in relation to Congress related to mere communications with Congresspersons.3 Further the Plaintiff must allege that the conduct were in relationship to a “particular official proceeding” where the information “might be material.” Arthur See U.S. v. Dunn, 434 F.Supp.2d 1203, 1207 (M.D. Ala. 2006) (explaining the term “proceeding” in §1512 “describe[s] events that are best thought of as hearings (or something akin to hearings): for example, federal court cases, grand jury testimony, Congressional testimony, and insurance regulatory hearings”) The Plaintiff also writes Opp. to H&W ¶ 26 that “Congress Members raised the issue of swatting on the floor of the House on at least one occasion.” However, the last time SWATting was mentioned in Congress was on December 15, 2009, about two years before the earliest SWATting at issue in this case. 111 Cong. Rec. H14946-H14947 (daily ed. Dec. 15, 2009) (statement of Rep. Tim Murphy). The Plaintiff can point to no currently pending proceeding before Congress on the date that the Defendants allegedly made these false statements to Congresspersons. 10
3

Andersen LLP v. U.S., 544 U.S. 696, 708 (2005). Finally, the Plaintiff must allege who that other person was that the Defendants were attempting to tamper with. The Plaintiff does not allege any of the elements of this offense, even when improperly amending his complaint in his Oppositions.4 Second, he claims that unnamed Defendants violated §1512(d) by allegedly “harassing Plaintiff for years so he would not seek redress in federal courts or talk to federal law enforcement officials.” Harassment is not defined in §1512(d) but it is defined in §1514(d)(1), which is designed in part to enforce §1512(d), as follows: (A) the term “course of conduct” means a series of acts over a period of time, however short, indicating a continuity of purpose; (B) the term “harassment” means a serious act or course of conduct directed at a specific person that— (i) causes substantial emotional distress in such person; and (ii) serves no legitimate purpose; The Plaintiff has not laid out any of these elements. He has simply said the word “harass” a few times. The Plaintiff has not alleged any “serious acts” or that any Defendant engaged in a “course of conduct” or that they relate to any anticipated federal proceeding or criminal investigation calculated to prevent the Plaintiff from participating in those proceedings or investigations. The Plaintiff asserts that the Defendants have written many words about him but words are not acts. In fact, if this court chose to apply the harassment statute to the Defendants’ peaceable writings—as the Plaintiff almost certainly wishes this court to do—such an application would be unconstitutional. U.S. v. Cassidy, 814 F.Supp.2d 574 (2011), decided by Judge Titus, is instructive on this point. There, like here, was the allegation that the “Defendant used Twitter and blogs to harass” his

4

The Plaintiff incorrectly styles his oppositions as “responses.” 11

alleged victim. Id. at 578. First, Judge Titus held that harassment statutes represented content based regulation and, therefore, were subjected to strict scrutiny, requiring that they be narrowly tailored to serve a compelling interest. Such statutes are not content neutral because “it regulates speech based on the effect that speech has on an audience,” id. at 584, specifically in this case the effect it has on the Plaintiff. If the Defendants wrote articles praising the Plaintiff, the Plaintiff would not be claiming that he was being harassed by them. But because the Defendants wrote articles criticizing him, he now claims he is being “harassed.” This is classic content-based regulation. Therefore, if this court should choose to apply the harassment statute to mere speech, the statute would not survive the strict scrutiny test. As the Cassidy court noted, “[t]o survive strict scrutiny, the Government has the burden of showing that a content-based restriction ‘is necessary to serve a compelling state interest.’” Id. at 584. In Cassidy, criminalization of expression was not necessary because the alleged victim “had the ability to protect her own sensibilities simply by averting her eyes from the Defendant’s Blog and not looking at, or blocking his Tweets.” Id. at 585 (internal quotation marks omitted). The Plaintiff can be expected to do the same. It is a long-standing rule of statutory interpretation that ambiguous statutes are interpreted as to avoid serious constitutional doubts.5 As the Supreme Court observed in Public Citizen v. D.O.J.: It has long been an axiom of statutory interpretation that where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. The doctrine of lenity also counsels against this interpretation since this is a criminal statute being applied, albeit in a civil setting. As the Court said in Crandon v. United States, 494 U.S. 152, 158 (1990) when applying lenity to another criminal statute providing the basis for civil liability, “this timehonored interpretive guideline serves to ensure both that there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability.” (Internal quotation marks omitted). 12
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491 U.S 440, 466 (1989) (internal quotation marks omitted). A prohibition on harassment is always ambiguous. Therefore, this statute should be interpreted so that peaceful activity intended to

communicate to the public at large cannot form the basis of a claim for harassment under §1512(d). The Plaintiff also alleges in Opp. to H&W ¶ 28 in conclusory fashion that “[t]he Defendants also engaged in a conspiracy to threaten, assault and intimidate Plaintiff and therefore their conduct is prohibited by 18 USC 1512(k) [sic].” First, the Plaintiff has not made any non-conclusory allegation that the Defendants have ever threatened him: he claims that third parties have and blames the Defendants for it without alleging their conduct met the Brandenburg standard for incitement, 395 U.S. at 447. Second, once again the Plaintiff is collaterally estopped from claiming Mr. Walker assaulted him and in any case has not claimed that the alleged assault was related to any federal proceeding or investigation. Third, the Plaintiff has not properly alleged witness/informant “intimidation.” While the statute doesn’t define “intimidation,” in Virginia v Black, the Supreme Court stated that Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. 538 U.S. 343, 360 (2003). The Plaintiff makes no non-conclusory allegation that any Defendant’s words or conduct met that definition. Finally, the Plaintiff doesn’t allege any element of conspiracy under §1512(k). Therefore, for all of these reasons the Plaintiff has failed to allege a violation of §1512 and therefore doesn’t properly allege a single predicate offense under §1961(1). C. The Plaintiff Doesn’t Properly Allege that the Predicate Acts Amount to a “Pattern of Racketeering Activity.” The Plaintiff does little to rebut the Walker Memorandum’s point that the Amended Complaint did not meet the continuity requirement in demonstrating a pattern of racketeering activity. The Plaintiff 13

only does three things in response. First, he simply insists that his conclusory allegations are sufficient. They are not. Second in his Opp. to DBCS ¶ 13, he adds a new conclusory allegation that the Defendants’ conduct “posed a threat to the social well-being.” However, this is only a conclusory allegation—which is insufficient—and it is contradicted by his assertion in paragraph 17 that the “main goal of the Enterprise was to drive Plaintiff out of business and intimidate him from exercising his First Amendment right of redress.” The Plaintiff might claim in a conclusory fashion that the alleged conduct posed a threat to society in general, but he is only properly alleging that his interests were endangered. Third, he cites this court’s decision in Wang Laboratories for the proposition that “NBC received scores if not hundreds of donations [by alleged fraud], and each donation constitutes a separate predicate act under RICO.” However, this is directly contradicted by the later decision by the Fourth Circuit in Al-Abood v. El-Shamari, which stated: [W]e are cautious about basing a RICO claim on predicate acts of mail and wire fraud because “’[i]t will be the unusual fraud that does not enlist the mails and wires in its service at least twice.’”... This caution is designed to preserve a distinction between ordinary or garden-variety fraud claims better prosecuted under state law and cases involving a more serious scope of activity.... We have reserved RICO liability for “ongoing unlawful activities whose scope and persistence pose a special threat to social well-being.” 217 F.3d 225, 238 (4th Cir. 2000) (citations omitted). What the Al-Abood court says next also should bear on this court’s analysis: [T]his case is not sufficiently outside the heartland of fraud cases to warrant RICO treatment. The main predicate acts here were mail and wire fraud, and although they were related and involved three discrete schemes spanning several years, there was only one victim of the fraud. There is no per se rule against a RICO claim involving only one victim.... However, the narrow focus of the scheme here—essentially a dispute between formerly close family friends—combined with the commonplace predicate acts persuades us that the facts here do not satisfy the pattern requirement.... In sum, even viewing all of the facts in the light most favorable to Al-Abood, we agree with the district court that this case does not involve a scope of unlawful activity that exceeds that found in customary fraud cases. 14

Id. at 238-39 (footnote and citations omitted). Likewise, the Plaintiff’s admission that he believes that the “main goal of the Enterprise was to drive Plaintiff out of business and intimidate him from exercising his First Amendment right of redress” raises again the issue of plausibility highlighted by Iqbal. Why on Earth would the Defendants just randomly decide to pick on him and him alone? If the Plaintiff is so innocent, if the Defendants have no just cause to believe that he has done the evil they allegedly falsely accused him of, why would they want to destroy him? Why would they care about him at all? And why him and not someone else— perhaps someone who doesn’t have a track record of pro se litigiousness and, therefore, is less likely to bring suit? The Plaintiff gives no explanation and, therefore, robs his allegations of any credibility. D. The Plaintiff Doesn’t Properly Allege that an Enterprise Exists. The Walker Memorandum pointed out that the Plaintiff made virtually no effort to outline the structure of the alleged association in fact enterprise. In response, the Plaintiff has for the first time (and improperly) named in a conclusory fashion a “Godfather” and a “consigliere” Opp. to H&W ¶ 31 and claims in an equally conclusive fashion that “[t]he Defendants function as a continuing unit to achieve the common purpose of harming Plaintiff in every and any way possible.” What he doesn’t do is actually allege sufficient facts that would lead this court to believe his conclusions are plausible.6 The Plaintiff is not even sure that those who are allegedly out to get him are intentionally participating in this alleged criminal enterprise. In his “Plaintiff’s Response to Defendant The Franklin Center’s Motion to Dismiss,” (“Opp. to TFC,”) ¶ 4, he claims TFC falsely accused him of being The Plaintiff also falsely claims that “[t]he Complaint sets forth in great detail that the Defendants have both a formal and informal framework, with daily and sometimes hourly contact through various networks, mainly through the Internet, for carrying out its objectives” Opp. to H&W at ¶ 33. This obviously false claim is disposed of in the accompanying Motion to Strike p. 22. 15
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involved in SWATting, and then accuses them of a failure of due diligence. Likewise, he accuses DBCS of a lack of due diligence, writing that DBCS did not “conduct[] any reasonable investigation prior to making their false statements about Plaintiff.” Opp. to DBCS ¶ 43. And while most of his vitriol is aimed at Walker and Hoge, he admits that “Defendants Hoge and Walker and the other Defendants acted with reckless disregard for the truth” in allegedly stating/implying he was the SWATter, instead of claiming they knew what they were saying/implying was false. Opp. to H&W ¶ 17. Besides the fact that he is admitting that these were not intentional acts, negating fraudulent intent, it raises an alternate explanation for their conduct: they actually believed what they were being told by others. If we assume arguendo that there are a few people who in bad faith accused the Plaintiff of criminal and immoral conduct that they knew he was actually innocent of, why does he assume that every person who repeats those accusations is part of a conspiracy? Isn’t the simpler explanation that they just believed those other persons? In Iqbal, the presence of a plausible, alternate explanation was fatal to the plaintiff’s case. Javaid Iqbal had claimed that he and other Muslims were arrested based on racial/ethnic/religious profiling in the immediate aftermath of the September 11, 2001 terrorist attacks. In support of that allegation, Mr. Iqbal claimed that the FBI “arrested and detained thousands of Arab Muslim men... as part of its investigation of the events of September 11.” 556 U.S. at 681. The Iqbal court said that this was not sufficient because there was an obvious alternative explanation besides bigotry: The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. 16

Id. at 682. So it was not enough for Mr. Iqbal to note that many Arab Muslims had been rounded up, but instead he needed to allege sufficient facts to make the court believe they were being picked up due to racial/ethnic/religious profiling. Without such evidence being alleged, the Supreme Court determined that the case was not plausible and thus should be dismissed. Likewise, it should not be sufficient for the Plaintiff to say a person falsely accused him of SWATting or any other wrongful act in order to declare that this person was part of some kind of “mafia” out to get him. Instead, he must demonstrate why it is not plausible that they simply honestly believed the Plaintiff had done those things—especially when they are not first party witnesses to the events they are reporting. This is especially critical given the seemingly random selection of Defendants and the fact the Plaintiff admitted in Amend. Compl. ¶ 85 that “[m]any of the Defendants and other nondefendant bloggers and reporters believed that Plaintiff was involved in the swattings.” The Plaintiff himself clearly doesn’t believe that every single person who have claimed/implied that he was engaged in SWATtings is part of this conspiracy, and he has admitted that many of the Defendants he has accused of such statements/implications made them honestly. Why is TFC a Defendant, to pick out a specific example? What did they do, besides simply believing the statements of other Defendants, to earn them a place on the roster of Defendants? The Plaintiff has not provided a cogent explanation as to why he has included some people and not others in his alleged enterprise, and, necessarily, he has not alleged sufficient facts that would lead this court to draw the conclusion that it is plausible that they were in such an enterprise. III. THE PLAINTIFF DOESN’T ALLEGE AN INVIDIOUSLY DISCRIMINATORY MOTIVE OR A FEDERAL NEXUS AND THEREFORE HE HAS NOT ALLEGED A VIOLATION OF 42 U.S.C. §1985(2) OR (3). In his oppositions, the Plaintiff has revealed that he doesn’t understand §1985. In the second 17

paragraph 367 of his Opp. to H&W, on page 17, the Plaintiff writes: “[t]o state a claim under 42 U.S.C. §1985, a plaintiff must show that the Defendants [sic] conspired with a state actor who acted under color of law under 42 USC 1983 [sic] by violating a victim’s Constitutional right.” Simply put that is not what §1985 says and the case the Plaintiff cites for this proposition, West v. Adkins, 487 U.S. 42 (1988), is not a §1985 case. Section 1985(2) and (3) does not require any state action. Griffin v. Breckenridge, 403 U.S. 88 (1971). What it requires is either a relationship to a federal proceeding or election, or an invidiously discriminatory motive. Carpenters v. Scott, 463 U.S. 825, 839, 839 n. 1 (1983). The Plaintiff has not alleged either8 and therefore all claims under §1985 should be dismissed. IV. THE PLAINTIFF HAS NOT ALLEGED THAT DEFENDANT FREY ACTED UNDER COLOR OF STATE LAW TO DEPRIVE THE PLAINTIFF OF A FEDERAL RIGHT AS REQUIRED UNDER 42 U.S.C. §1983 The Plaintiff doesn’t deny that the facts alleged in the complaint were insufficient to render Defendant Frey a state actor. So he improperly attempts to amend his complaint with an plethora of new facts that the Plaintiff never thought to include in his original complaint. Many of these new allegations amount to recycling the same allegations that the court rejected in Naffe v. Frey et al. (C.D. Cal., 2012) case number 2:12-cv-08443-GW-MRW,9 involving the very same Defendant Frey. Sometimes these allegations include Mr. Frey visibly relying on the expertise he has gained in his “day job” and even from what he witnessed as a prosecutor when writing on his blog or on Twitter, but this is not sufficient to transform his off-duty speech into state action. As that court held, The paragraph numbers are not always in order in the Opp. to H&W and thus there are sometimes multiple paragraphs with the same number. In such cases, the page number is added for clarity. 8 As discussed infra section IV, the Plaintiff does make a new, and conclusory allegation that Mr. Frey and other Defendants conspired to deprive him of the equal protection of the laws, but never actually alleges an invidious bias, let alone in a non-conclusory fashion. 9 A copy of this decision was included as an exhibit to the Walker Memorandum. 18
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“Frey’s practice of simply (relatively frequently) mentioning the fact that he is a deputy district attorney... does not transform everything he says on his blog or on Twitter into state action.” Nor do any of the other actions alleged even come close to transforming Mr. Frey’s conduct into state action. For instance, the Plaintiff’s claim that Mr. Frey allegedly gave Mr. Walker legal advice doesn’t qualify. Any attorney can do that, whether they work for the state or not. The critical question is whether he helped Mr. Walker in his official capacity.10 In other words, did he help Mr. Walker as a prosecutor or simply as another lawyer? The Plaintiff doesn’t make any non-conclusory allegation that the help was offered as a prosecutor. The Plaintiff also implausibly alleges, for the first time, that a supposed threat came from the Los Angeles County Sheriff’s Department. Opp. to H&W, ¶ 48. There are several problems with the Plaintiff’s allegation. First, as noted in the Motion to Strike, pp. 4-5, the Plaintiff misstates the contents of the message he claimed to receive. The message merely said, “Don’t go there.” Second, such a vague statement cannot reasonably be understood as a threat. See, e.g., U.S. v. Darby, 37 F.3d 1059 (4th Cir. 1994) (employing an objective, “reasonable person” standard in determining whether a communication is a true threat under 18 U.S.C. §875(c)). The phrase has literally dozens of meanings11 and given that the Plaintiff alleges it was sent through Justice Through Music Project’s (“JTMP’s”) contact page to the organization as a whole and JTMP is active in many causes, it might have referred to many different issues. For instance, only two days before the message was allegedly sent, the site’s blog

The Plaintiff tries to cloak Mr. Frey’s legal advice in state authority by saying that Mr. Frey “communicated with Defendant Walker while waiting for a jury.” But in Opp. to H&W 43 the words attributed to Mr. Frey make it clear that he was going to do the work that night, when he was off duty. 11 William Safire, “The Way We Live Now: 1-23-00: On Language; Don't Go There,” The New York Times, January 23, 2000 (available at http://www.nytimes.com/2000/01/23/magazine/the-way-we-livenow-1-23-00-on-language-don-t-go-there.html) visited January 29, 2014. 19

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celebrated singer Mick Jagger getting to curse on national television,12 which might have provoked a response of “don’t go there.” Further, it takes several additional leaps of logic to make it plausible that the message was sent at Mr. Frey’s behest, with the absurd promise that Frey, a state prosecutor, could protect that person from federal criminal prosecution.13 The Plaintiff wants this court to believe that this is almost like a res ipsa loquitur situation in tort law, but the situation does not speak for itself. As the Supreme Court said in Iqbal, “[t]he plausibility standard... asks for more than a sheer possibility that a defendant has acted unlawfully,” 556 U.S. at 678. This new and improper allegation falls far short of that standard. The Plaintiff also alleges, for the first time, that Mr. Frey was investigating him at some point in time. E.g. Opp. to H&W ¶ 36 (on page 17) and ¶ 50. That allegation, besides being an improper

attempt to amend the complaint, also lacks sufficient specificity. When the Plaintiff does provide more specificity, we see statements more like this: In other emails to Walker and some of the other Defendants, [Frey] states that his office at the LA County District Attorney is “investigating” Plaintiff had asked Defendant Walker to keep quiet while the investigation proceeded. Exhibit U. Opp. to H&W ¶ 41 (page 19). If one examines Exhibit U itself one sees that the Plaintiff’s

characterization of it is false. Mr. Frey says on page 2 of exhibit U he says that he tried to publicize the fact that the Plaintiff perjured himself in Maryland Court, but “my office asked me to back off while they investigate and I said OK.” In that context “his office” could refer to nothing more than the District Attorney’s Office as a whole. It doesn’t indicate that he was personally investigating the Plaintiff. Nor is Mr. Frey’s frequent statements that he is being quiet about the crime that was committed CR, Mick Jagger Gets to Say “S___” on TV and Sing About Mitt Romney, CR’S BLOG, May 21, 2012 (available at http://www.jtmp.org/jtmp/node/352) visited January 31, 2014 (curse word censored). 13 Interstate threats are a federal offense under 18 U.S.C. §875(c). 20
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against him and its investigation prove that he is conducting the investigation himself. For instance, in Opp. to H&W ¶ 42 (page 20) the Plaintiff writes: In another email dated December 19, 2011, he states: “Don't volunteer where you got this stuff. Just because of the investigation. But for that, I would be shouting all this from the hilltops, but I still think we can put these guys in prison, so I have to stay quiet.” (emphasis added). First, Mr. Frey being silent because there is an ongoing investigation is nothing more than the victim of a crime respecting the fact that publicity about the crime might harm the investigation, most likely at the request of those who are actually conducting the investigation. Mr. Walker, for instance, has received similar requests from law enforcement officers and he has respected those requests. As for the desire to see the Plaintiff returned to prison again, there is nothing in that statement that suggests that he is personally going to prosecute the Plaintiff. What it actually indicates is a hope that investigators will find enough information to justify sending the Plaintiff back to prison again, a wish that is lawful. Meanwhile, the Plaintiff’s conclusory allegation—which is not supported by the exhibits he says would support him—that Mr. Frey was conducting an investigation is rebutted by the Plaintiff’s own words in Opp. to H&W ¶ 44: “In several emails on December 21,2011, Defendant Frey discussed his planned meeting with the FBI the following day and setting up a sting operation with law enforcement to arrest Plaintiff.” If Mr. Frey was personally conducting the investigation, why would he need to contact anyone else about setting up the “sting?” Rather than asking the FBI to do it—an agency he didn’t belong to—why not set it up himself? Instead, what this passage demonstrates is that Mr. Frey was acting not as a Deputy District Attorney but as a victim of a crime, with no more powers or rights than any other victim of a crime when speaking to the FBI. The fact is Mr. Frey is a crime victim. As such, he has rights, and the fact he is also in law enforcement doesn’t strip him of those rights. Among them is the right to give information to law 21

enforcement. He has a right to receive advice and guidance from law enforcement (if they should offer it) about how he can help them catch whoever committed this crime against him or at least to avoid harming the investigation. He is even allowed to gather information for himself on his own time and suggest to law enforcement ways they might be able to gather information. Any ordinary citizen, when they are the victim of a crime, can do those things; Mr. Walker has done all of them. The key question is whether “an individual is possessed of state authority and purports to act under that authority.”14 The Plaintiff’s non-conclusory allegations do not establish that Mr. Frey purported to act under the authority of the state, or that his role was different from that of any other crime victim. Further, even if he had personally investigated the Plaintiff, that would not be sufficient to establish a violation of the Plaintiff’s federal rights. To establish that, one must look at what rights were allegedly violated. In an unnumbered paragraph on page 25 Opp. to H&W, the Plaintiff asserts that “[i]t is settled law that the First Amendment prohibits government officials prosecutions, for speaking out or exercising the right to redress.” That may be true in terms of freedom of expression,15 but that is not what the Plaintiff claims to have happened. He doesn’t claim he was actually prosecuted or imprisoned. He claims that he was merely investigated and publicly accused by Mr. Frey of being the SWATter. This is insufficient as a matter of law. As the Fourth Circuit said in Suarez Corp. Industries v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000), another §1983 case: Griffin v. Maryland, 378 U.S. 130, 135 (1964) (ruling that a sheriff in uniform who arrested African Americans for violating segregation policies in Glen Echo Amusement Park were state actors even though they were technically under the control of the private management of that park) 15 The Plaintiff’s strange claim of a First Amendment “right to redress” appears to refer to a right to sue others in court. For instance, in Amend. Compl. ¶ 163, the Plaintiff has claimed that Mr. Frey attempted to violate the Plaintiff’s “First Amendment right to seek redress from the courts[.]” That is the due process clauses, not the First Amendment. In any case, “chilling effect” analysis doesn’t apply to this kind of right and he makes no non-conclusory allegations that any Defendant actually prevented him from coming to court. 22
14

The nature of the alleged retaliatory acts has particular significance where the public official's acts are in the form of speech. Not only is there an interest in having public officials fulfill their duties, a public official’s own First Amendment speech rights are implicated. Thus, where a public official’s alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow, such speech does not adversely affect a citizen's First Amendment rights, even if defamatory. Further, the same court relied significantly on Colson v. Grohman, 174 F.3d 498 (5th Cir. 1999), the Fourth Circuit describing the holding in Colson as follows: [A] citizen's First Amendment rights were not adversely affected because she had “alleged only that she was the victim of criticism, an investigation (or an attempt to start one), and false accusations: all harms that, while they may chill speech, are not actionable under our First Amendment retaliation jurisprudence” Colson involved allegations that a chief of police falsely accused that plaintiff of crimes, started an official investigation into said non-crimes, and even publicized those false accusations against her in retaliation for protected speech, all in his official capacity. But that was insufficient to make out a violation of §1983 in Colson and was cited with approval by the Fourth Circuit in McGraw. Nor can the Plaintiff claim that an alleged “threat” of investigation alone satisfy the exception set in McGraw for threats because the Plaintiff doesn’t allege that Mr. Frey “intimat[ed] that punishment, sanction, or adverse regulatory action will imminently follow.” None of the Plaintiff’s new, particular allegations amount to a coercive threat at all. They are private discussions with Mr. Walker and others about the fact that there is an ongoing investigation and his hope they will result in the Plaintiff being returned to prison. The Plaintiff cannot credibly claim that these statements were made in order to coerce him into silence. Even assuming arguendo that any of these statements amounted to a threat— and they do not—it is not enough to simply threaten to do some wrong at some time in the future. Such a threat is not coercive. In order for a threat to be coercive it must be 1) conditional by words or implication and 2) it must be made under circumstances where the target of that coercion is likely to 23

learn of that threat.16 The Plaintiff has not alleged that Mr. Frey “intimat[ed] that punishment, sanction, or adverse regulatory action will imminently follow,” and he doesn’t allege that Mr. Frey made this socalled threat with the knowledge that it would ever get back to the Plaintiff. Without such allegations, it is not plausible that Mr. Frey made those statements with the intent of chilling the Plaintiff’s speech. Finally, the Plaintiff improperly alleges for the first time in Opp. to DBCS ¶ 35 that Mr. Frey, DBCS, and Dan Backer himself also were part of a conspiracy to violate Mr. Kimberlin’s right to equal protection of the law. This is a truly conclusory allegation, never detailing how he was denied the equal protection of the law or even what trait supposedly inspired the invidiously discriminatory animus.17 Simply put, even when considering the Plaintiff’s improperly amended allegations—and this court should not consider them—the Plaintiff doesn’t properly allege that Mr. Frey had violated any of the Plaintiff’s federal constitutional or statutory rights, as necessary to allege a violation of §1983. V. THIS COURT SHOULD DISMISS THIS CASE UNDER THE COLORADO RIVER DOCTRINE OF ABSTENTION By the very title of the Plaintiff’s “Notification of Related Court Ruling” (“Notification”), the Plaintiff is admitting that a concurrent suit that is occurring in Montgomery County Circuit court is in fact related to this one. He states that “the abuse of process and malicious process and malicious prosecution [sic] allege the improper use of criminal charges and the improper filling of civil lawsuits C.f. U.S. v. Brooks, 957 F.2d 1138, 1149-50 (4th Cir. 1992) (holding that in order to prove that a threat was designed to influence a person’s behavior, there must be some expectation that this person would actually learn of the threat). 17 The Plaintiff has a history of speciously claiming invidious discrimination. For instance, upon information and belief, the instant Plaintiff filed a bar complaint against Mr. Frey that claimed Mr. Frey had engaged harassment because of a disability, on the following theory: “I am considered as having a disability because of my status as a felon.” A felony conviction is not considered a “disability” for the purposes of anti-discrimination law. See e.g. 42 U.S.C. §12102(1) (Americans with Disabilities Act). 24
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which form part of the factual basis for the RICO suit.” Notification, p.1. In addition to that factual overlap, the Plaintiff is also claiming that the same damage has been done to his reputation in both suits. In the instant suit, which is related to allegedly false claims that he was involved in SWATting, the Plaintiff claims in Amend. Compl. ¶ 181 that the Defendants made “Plaintiff appear odious, infamous and/or frightening.” Meanwhile in his First Amended Complaint in the state case, in paragraph 70, the same Plaintiff alleges that by allegedly coercing his wife into accusing him of child sexual abuse, five of the same Defendants have also made “Plaintiff appear odious, infamous and/or frightening.”18 The Plaintiff thinks that this is a reason not to dismiss the present case. In Opp. to DBCS ¶ 12, he writes that “[t]his ruling supports Plaintiffs RICO charge[.]” This is incorrect if only because Iqbal is not followed by the Maryland State courts. Unfortunately, the standards for the sufficiency of a complaint in Maryland state court is much lower than in Federal Court. However, ironically, the parallel case is an additional reason to dismiss this case under the Colorado River doctrine. In Colorado River Water Cons. Dist. v. U.S., 424 U.S. 800 (1976) the Supreme Court held that while a related state litigation was not an absolute bar to hearing claims in federal court, the courts did have discretion to abstain from hearing a parallel federal case. Specifically, such dismissal made sense when it served the goal of the “[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Id. at 818. In Colorado River, the Supreme Court was particularly concerned about “piecemeal adjudication of water rights.” Id. at 819. Here we run the risk of the piecemeal adjudication of the Plaintiff’s reputational rights and indeed the very real danger of contradictory rulings. What if, for instance, the state court finds that those defendants had rendered Mr. Kimberlin “odious, infamous and/or frightening” while this

18

A certified copy of the Amended Complaint in the state case is attached as Exhibit C. 25

court finds that Mr. Kimberlin already had that reputation before he had his first interaction with any of the Defendants in this case? And the chances of inconsistent verdicts is increased in this case because the Plaintiff, a convicted perjurer, cannot testify in Maryland state courts. Further, by abstaining from taking on this case, both courts can avoid the unenviable chore of determining how much of the damage to his reputation as due to the allegations at issue in this case, how much of the damage to his reputation was due to the revelations of child abuse at issue in the concurrent state case, and how much of the damage to his reputation was simply the result of his proven criminal past. The difficulty in separating out the exact cause of the alleged damage to the Plaintiff’s reputation is another reason why this court should abstain from hearing this case. That, combined with the fact that there has been no proceedings in this court except a motion to dismiss, counsels in favor of abstention. Accordingly, the Plaintiff has supplied a new reason why this court should dismiss the instant action. In the end, stripped of all of its hyperbole about mail and wire fraud, violations of the Klan Act and other nonsense, what the Plaintiff has is really alleging is a run-of-the-mill defamation case. There is no reason why the Plaintiff cannot amend the Maryland complaint to include every Defendant named in this case, and every claim that is not dismissed with prejudice (if there are any). Therefore, if any part of the Plaintiff’s claim has not been dismissed with prejudice, this court should abstain from hearing any remaining claims, dismiss those claims without prejudice and instruct the Plaintiff to pursue these claims in Maryland state court, where they most naturally belong. VI. THE PLAINTIFF HAS NOT PROPERLY ALLEGED A CLAIM FOR FALSE LIGHT OR DEFAMATION WITHIN THE STATUTE OF LIMITATIONS Once again, it is necessary to point out that the Plaintiff has misled this court when the Plaintiff tried to claim the statute of limitations for False Light had not expired. 26 As pointed out in the

accompanying Motion to Strike p. 12, the Plaintiff falsely portrayed a Court of Special Appeals decision as a Court of Appeals decision. This is the difference between the decision being a definitive reading of the statute that must be obeyed by this court, versus one that is at most persuasive authority. The precedent of this district is Smith v. Esquire, Inc., 494 F.Supp. 967, 969 (D. MD, 1980), which holds that when “a false light claim is essentially analogous to a libel claim... [it] should be governed by the same statute of limitations.” That it is the controlling precedent in this district is sufficient justification to follow it. Further, Allen v. Bethlehem Steel Corp., 76 Md. App. 642 (1988) didn’t raise any arguments that were not considered by the Smith court. They simply stated that as a policy they prefer to let the legislature clean up their own mistakes. Obviously, the Smith court found it more persuasive to avoid an absurd result. As the Smith court wrote: 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. Thus, the Smith court held that a contrary ruling “would severely undercut the policy considerations which led to the enactment of the one-year statute governing defamation cases.” Id. While the Smith court did not say it in so many words, plainly, it was following the Maryland Court of Appeals’ instruction to avoid a reading of a Maryland statute that leads to an absurd result. See, e.g., Dickerson v. State, 324 Md. 163, 171 (1991). This provides an additional reason, besides the simple fact that it is the precedent of this federal district, to follow Smith. Turning to defamation, the Plaintiff makes no attempt to deny that his defamation claims are subject to the one year statute of limitations or that the alleged statements/implications by Mr. Walker fall outside of that period. Instead, he attempts to toll the statute of limitations based on two theories. The first theory is that there is a “conspiracy” involved. However, the Plaintiff has cited no Maryland 27

authority for the proposition that the statute of limitations is tolled by conspiracy and in any case, he has never properly alleged any of the elements of a conspiracy to defame. Perhaps recognizing that this was a weak theory, the Plaintiff offers a second theory: that the Defendants prevented the Plaintiff from filing suit because of threats and intimidation. The only authority he cites for this principle is Murphy v. Merzbacher, 346 Md. 525 (1997), but, once again, he is attempting to mislead the court. The Murphy court did not rule that threats or intimidation could toll the statute of limitations. Id. at 535. In any case, the Plaintiff has not made any non-conclusory allegation of any threats by any of the Defendants or “constitutionally proscribable” intimidation as defined in Virginia v. Black, 538 U.S. at 360, and he certainly hasn’t made non-conclusory allegations that any such non-threats and non-intimidation proximately prevented him from filing suit. Therefore, even if it was the rule, the Plaintiff has not properly invoked it. Finally, the Plaintiff attempts to rebut Mr. Walker’s argument that the Plaintiff is defamation proof by lying to this court. The Plaintiff first lies about his criminal history and the extent to which the Plaintiff’s reputation has already been harmed by other publications; then the Plaintiff falsely tries to claim that a court has already ruled—as least in regard to Mr. Walker—that the Plaintiff is not a public figure. The falseness of both claims are discussed adequately in the accompanying Motion to Strike, pp. 8-10. When viewed on its merits, the Plaintiff’s claim that he is not a public figure borders on farcical. This man terrorized an entire town, tried to change the course of a presidential election, and today reaps the benefits of special tax treatment on two corporations he founded. Of course he is a public figure. And while this reply will largely fall back on the otherwise unchallenged points of law cited in the Walker Memorandum, it is worth noting that in Opp. to H&W ¶ 38 the Plaintiff implicitly admits 28

that merely providing truthful information about the Plaintiff would “make him appear odious.” This bolsters Defendant Walker’s argument that the Plaintiff’s extensive criminal history (not to mention the negative publicity provided by others) already rendered him “odious, infamous and/or frightening.” Further, Cardillo v. Doubleday & Co., Inc., 518 F.2d 638 (2nd Cir. 1975) held that the rule that a court should dismiss a case when a person’s reputation is defamation proof—especially when that person is a public figure—is one that touches on Constitutional considerations. In that case, also dealing with a person who had an extensive “rap sheet” (and an authorized biography), the court stated that we consider as a matter of law that appellant is, for purposes of this case, libel-proof, i. e., so unlikely by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages as to warrant dismissal of the case, involving as it does First Amendment considerations. Id. at 639. The reasoning Cardillo, the importance of free and robust debate to democracy, and the simple logic that this Plaintiff, who committed crimes so infamous as to earn him the moniker the “Speedway Bomber,” Kimberlin v. White, 7 F.3d 527, 528 (6th Cir. 1993), was already seen as “odious, infamous and/or frightening” long before the events of this litigation took place, favors dismissal. VII. THE PLAINTIFF DOES NOT ALLEGE ANY INJURY DUE TO EMOTIONAL DISTRESS OR EVEN THAT HE HAS FELT ANY EMOTIONAL DISTRESS The Plaintiff doesn’t dispute Mr. Walker’s point that “the Plaintiff has failed to properly allege that he has felt any distress at all, let alone extreme emotional distress” Walker Memorandum, p. 47 or that “in relation to his claim of... or intentional infliction of emotional distress, the Plaintiff alleges absolutely no damages” Id. at p. 48. Instead the Plaintiff spends several pages in his Opp. to H&W arguing a point that hasn’t been denied: that actual physical damage was not necessary to make out a claim for emotional distress. The problem with the Plaintiff’s complaint isn’t that the Plaintiff doesn’t allege physical harm: 29

the problem is that he doesn’t make any non-conclusory allegation of any harm at all or even that he felt any distress. Indeed, the Plaintiff’s own discussion of Womack v. Eldridge, 215 Va. 338 (1974), although it is not a Maryland case, is illustrative of exactly the kinds of things that were missing from the Amended Complaint. The Plaintiff writes that as a result of the conduct in that case, Mr. Womack “suffered shock, mental depression, nervousness and great anxiety[.]” Opp. to H&W ¶ 38 p. 28. The Plaintiff claims absolutely none of these mental harms, or any other. Perhaps recognizing this shortcoming, the Plaintiff also alleges for the first time that he has had to install a security system in his house, allegedly “because the Defendants have created a lynch mob based on false narratives to terrorize Plaintiff and his family on a continuous multi-year basis.” Opp. to H&W ¶ 42, p. 31. But even in his improperly amended allegations, he fails to allege that any

Defendant—let alone Mr. Walker—proximately caused that alleged “lynch mob” to manifest under Brandenburg v. Ohio, 395 U.S. at 447 (the government cannot “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”). He doesn’t even allege a single instance of Mr. Walker or any other Defendant advocating “the use of force or of law violation” and, on information and belief, no Defendant has done so. In short, he has not alleged that Mr. Walker has actually caused him any distress, causing him damage that is cognizable under the law. CONCLUSION The Plaintiff’s Amended Complaint doesn’t state a claim for which relief can be granted. The Plaintiff has made no non-conclusory allegation of injury cognizable under RICO, of any predicate acts under RICO, of any continuity under RICO, or even that there is an Enterprise under RICO or a conspiracy to create one. Likewise, the Plaintiff has failed to allege any state action or deprivation of 30

federal rights as required under 42 U.S.C. §1983 and has failed to allege a federal nexus or that any of the Defendants were motivated by invidious prejudice under §1985(2) or (3). Without any valid federal claims, the state law claims can be dismissed for want of diversity jurisdiction, or they can be dismissed on their merits. The Plaintiff has failed to allege any damage to his reputation within the statute of limitations in terms of defamation or false light invasion of privacy. Meanwhile, with respect to his claim to have suffered emotional distress he alleges neither distress nor any damage proximately caused by the Defendants by such non-distress. For all the sturm und drang of the Plaintiff’s Amended Complaint, it does not state any claim for relief. Therefore, this court should dismiss the Amended Complaint. Further, given the Plaintiff’s deep and brazen bad faith—where neither honesty nor certitude of being caught is any limit on his conduct— that dismissal should be made with prejudice. Finally, since the flaws pointed out by the Walker Memorandum, this Reply and accompanying Motion to Strike apply to all of the Plaintiff’s allegations for all of the Defendants, in the name of judicial economy this court should dismiss the entire case and be done with this Plaintiff, and grant any other relief that this court considers just and equitable.

Thursday, February 13, 2014

Respectfully submitted,

Aaron J. Walker, Esq. [personal information redacted]

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