UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Greenbelt Division


)
AARON WALKER )
PlaintiII, )
)
v. ) Civil Case No. 8:12-cv-01852-JFM
)
BRETT KIMBERLIN, )
)
JUSTICE THROUGH MUSIC, )
)
VELVET REVOLUTION, )
All DeIendants at: )
8100 Beech Tree Road )
Bethesda, MD 20817 )
Montgomery County )
)
JOHN DOE 1 )
Proprietors oI Breitbartunmasked.com )
)
DeIendants. )
)


PLAINTIFFS MEMORANDUM IN OPPOSITION TO
DEFENDANTS MOTION TO DISMISS

COMES NOW, PlaintiII Aaron J. Walker, through counsel, and submits the Iollowing
Memorandum in Opposition to DeIendant`s Motion to Dismiss Ior Iailure to state a claim, improper
jurisdiction, and improper purpose.
Case 8:12-cv-01852-JFM Document 25 Filed 11/16/12 Page 1 of 19
Redacted

ii
TABLE OF CONTENTS

PRELIMINARY STATEMENT 1

STATEMENT OF FACTS 3

STANDARD OF REVIEW 3

ARGUMENT 4

I. DEFENDANTS MOTION TO DISMISS SHOULD BE DENIED, AS IT IS
LEGALLY UNSUPPORTABLE AND FAILS TO STATE OR FOLLOW
THE PROPER LEGAL STANDARD 4

A. Defendants Version of the Facts is Irrelevant 4

B. Plaintiffs Complaint Easy Alleges Sufficient Facts to State a Claim 5

1. Defendants Conduct Violated Plaintiffs First Amendment
Rights 5

2. Defendant Abused Civil Process and Maliciously Used
Process 7

3. Defendant Tortiously Interfered with Plaintiffs Business
Relationship 7

C. Venue is Proper in this District 9

D. Defendants Suggestion that Plaintiff Filed Suit with Improper
Purpose is Without Merit 11

1. Improper Purpose is Not a Valid Defense Upon Which a
Motion to Dismiss Can Be Based 11

2. Plaintiff Filed Suit with the Proper Purposes of Ending
Defendant Kimberlins Lawfare, Protecting Plaintiffs First
Amendment Rights, and Recovering Damages for Defendants
Improper Conduct 11

II. Defendants Argument that Plaintiffs Request for Relief Violates Principles
of Comity Fails to State a Claim for Which Relief Can Be Granted 12

CONCLUSION 13
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TABLE OF AUTHORITIES

Cases Page(s)

Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) passim

Adcock v. Freightliner, LLC,
550 F.3d 369 (4th Cir. 2008) 3

Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) 3

Berman v. Karvounis,
308 Md. 259 (1987) 7

Gaylord Entertainment Co. v. Thompson,
1998 OK 30 (1998) 6, 7

Indep. Newspapers, Inc. v. Brodie,
407 Md. 415 (2009) 5

Kaser v. Fin. Prot. Mktg.,
376 Md. 621 (2003) 3

Keys v. Chrysler Credit Corporation,
303 Md. 397 (1985) passim

Krashes v. White,
275 Md. 549 (1975) 7, 13

Mast, Foos & Co. v. Stover Manufacturing Co.,
177 U.S. 458 (1900) 13

Mitrano v. Hawes,
377 F.3d 402 (4th Cir. 2004) 10

Montgomery Ward v. Wilson,
339 Md. 701 (1995) 8

New York Times Co. v. Sullivan,
376 U.S. 254 (1964) 5, 6


Case 8:12-cv-01852-JFM Document 25 Filed 11/16/12 Page 3 of 19

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One Thousand Fleet Ltd. Pshp. v. Guerriero,
346 Md. 29 (1997) passim

Railroad Comm. v. Pullman Co.,
312 U.S. 496 (1941) 13

Reno v. ACLU,
521 U.S. 844 (1997) 5, 6

Uffner v. La Reunion Francaise, S.A.,
244 F.3d 38 (1st Cir. 2001) 10


Codes, Regulations and Rules

28 U.S.C. 1391(b)(2) passim

Fed. R. Civ. P. 12 passim


Case 8:12-cv-01852-JFM Document 25 Filed 11/16/12 Page 4 of 19

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PRELIMINARY STATEMENT

The individual right to speak Ireely, permanently enshrined in the First Amendment to the
United States Constitution and vigilantly protected Irom degradation by the courts, is ineradicably
ingrained in our national tradition. No personal liberty is more Iundamental, more absolutely to the very
Iunctioning oI a democratic society. Yet, as our nation`s history reveals, Ireedom oI speech, however
valuable, is not immune Irom degradation.
DeIendant Brett Kimberlin now actively seeks to continue his extensive pattern oI attacking
others` ability to speak Ireely, employing the court system to engage in a continued pattern oI lawIare
and abuse oI process in contravention oI the First Amendment. PlaintiII Aaron Walker Iiled this action
to deIend his constitutional right to speak Ireely and truthIully on public issues, and to deIend the rights
oI many others who have succumbed to DeIendant Kimberlin`s neIarious tactics. . Walker, an attorney
and avid internet blogger with a considerable Iollowing, posted and discussed highly relevant public
issues on the internet Ior years, Iree Irom any harm or interIerence. Those who disagreed with Walker`s
personal views simply voiced their opposition on his blog in comments, or simply chose not to read his
writings. This open, lively debate or the lack oI interaction by those who chose not to read Walker`s
writing - ended abruptly when DeIendant Brett Kimberlin, upon viewing Walker`s blog, decided he did
not like what he saw.
Kimberlin, a notoriously disreputable public Iigure who manages two politically involved
nonproIit organizations (themselves deIendants in this case), has a sordid criminal past as a wholesale
drug dealer, perjurer, and domestic terrorist. Kimberlin`s personal history is quite naturally a matter oI
public interest (and record) to bloggers and media entities, including Walker, particularly given the well-
known, large-dollar donors whose wealth and largess supports Mr. Kimberlin. When Kimberlin saw
Case 8:12-cv-01852-JFM Document 25 Filed 11/16/12 Page 5 of 19

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Walker`s truthIul
1
blog posts regarding Kimberlin`s Ielonious past, rather than simply voicing his
criticism in the American tradition, Kimberlin issued a menacing warning. Kimberlin initially threatened
Walker with bar complaints and litigation, then actually Iollowed through with these threats, tarnishing
Walker`s proIessional reputation, Iorcing him to deIend against meritless lawsuits, and causing him to
ultimately lose his job.
Disturbingly, Kimberlin`s actions here are part oI a much larger pattern oI over 100 lawsuits and
administrative actions,
2
and represent merely a single battle in his long war oI legal attrition to silence
his critics or anyone who speaks truthIully about him, the mysterious activities he currently engages in,
or his criminal past. Employing state machinery and hijacking the courts, the very guardians oI our First
Amendment rights, Ior his neIarious ends, Kimberlin has conducted 'lawIare, Iiling over one hundred
Irivolous lawsuits and numerous peace orders, bar complaints, and other actions in an eIIort to Irighten
his critics into selI-censorship. Perhaps most ominous is the sheer eIIectiveness oI Kimberlin`s tactics.
Indeed, most speakers, when Iaced with the possibilities oI deIending (socially and economically) costly
litigation, simply back down, and reIrain Irom speaking.
In order to avoid rendering Aaron Walker yet another victim oI Kimberlin`s careIully-staged
eIIorts to silence his criticsto permanently censor those who speak truthIully on issues oI public
concernthis Court must deny DeIendant`s wholly unsupported, unsustainable Motion to Dismiss and
allow this case to move Iorward in regular order. As discussed Iully below, PlaintiII has adequately and
appropriately set Iorth in his Complaint claims Ior which this Court can grant relieI, and venue is proper
in this Court.


1
At no time has DeIendant Kimberlin ever disputed the truth oI these posts.
2
Kimberlin admits to instituting this number oI lawsuits and administrative actions.
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STATEMENT OF FACTS

PlaintiII`s Complaint sets Iorth in detail PlaintiII`s allegations oI DeIendant`s unlawIul and
tortious conduct, and similarly adequately describes PlaintiII`s injuries suIIered as a result oI these
unlawIul actions. Plaintiffs Complaint,
3
pp. 2-10. PlaintiII also presents a discussion oI the relevant
law. See Complaint.
In responding to DeIendant`s Motion to Dismiss, PlaintiII will incorporate such Iactual
allegations by reIerence in this Memorandum.
STANDARD OF REVIEW
In evaluating the legal suIIiciency oI a complaint against a Rule 12 (b)(6) motion to dismiss, a
court must accept all well-pled Iacts as true and view these Iacts in the light most Iavorable to the
plaintiII. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Adcock v. Freightliner, LLC, 550 F.3d 369, 374 (4th
Cir. 2008). The plaintiII`s complaint must thereIore contain only 'suIIicient Iactual matter, accepted as
true, to state a claim to relieI that is plausible on its Iace.` Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible iI it "allows the court to draw the
reasonable inIerence that the deIendant is liable Ior the misconduct alleged." Id. Thus, to overcome a
motion to dismiss, 'detailed Iactual allegations are unnecessarythe complaint must only present
suIIicient Iacts to allow a court to inIer 'more than the mere possibility oI misconduct. Id. at 1950.
PlaintiII easily presents suIIicient Iactual matter to state a claim Ior relieI that is plausible on its
Iace, allowing this court to inIer that DeIendant is liable Ior his tortious misconduct. See Iqbal at 1949.
Accepting PlaintiII`s assertions as true, as required under Iqbal, PlaintiII presents more than adequate
evidence establishing that DeIendant interIered with PlaintiII`s constitutional right to Iree speech,

3
Plaintiffs Complaint will be designated as 'Complaint in successive reIerences.
Case 8:12-cv-01852-JFM Document 25 Filed 11/16/12 Page 7 of 19

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abused civil process, maliciously used process, and tortiously interIered with PlaintiII`s business
relations. See Complaint, pp. 2-10, 35-53. DeIendant`s Motion to Dismiss reIuses to acknowledge
this well-accepted standard oI review and simply presents his own version oI the Iacts, notwithstanding
the Iact that DeIendant`s assertions are irrelevant Ior purposes oI a motion to dismiss. Because PlaintiII
presents suIIicient evidence to state a claim, and because DeIendant`s version oI the Iacts is irrelevant
Ior these purposes, DeIendant`s Motion to Dismiss PlaintiII`s Complaint Ior Iailure to state a claim must
be denied.
ARGUMENT
I. Defendants Motion to Dismiss Should Be Denied, as it is Legally Unsupportable and Fails
to State or Follow the Proper Legal Standard.

DeIendant seeks dismissal oI PlaintiII`s Complaint under Rule 12 (b) oI the Federal Rules oI
Civil Procedure, alleging that PlaintiII`s Complaint should be dismissed Ior 'Iailure to state a claim,
improper jurisdiction, and improper purpose. Defendants Motion to Dismiss,
4
p. 1. The Motion to
Dismiss should be denied on all grounds. PlaintiII`s Iactual allegations are adequately pled in his
Complaint, venue is proper in this court, and improper purpose is not grounds Ior a motion to dismiss.
Moreover, DeIendant`s Motion Iails to establish or meet any standard oI review, and is riIe with
scandalous, bizarre, and inarticulate ramblings that serve no purpose but to obIuscate justice.

A. Defendants Version of the Facts is Irrelevant for Purposes of Evaluating a
12 (b)(6) Motion

In reviewing whether a plaintiII has provided suIIicient Iactual matter to state a claim, a court
considers only the plaintiII`s claim on its Iace, rendering the deIendant`s version oI the Iacts irrelevant
Ior purposes oI motion to dismiss. See Iqbal, 129 S. Ct. at 1949. In evaluating a 12 (b)(6) motion, as

4
Defendants Motion to Dismiss will also be designated as 'Defendants Motion in successive reIerences.
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noted supra, the court must consider only the plaintiII`s version oI the Iacts and, accepting them as true,
view them in the light most Iavorable to the plaintiII. See Iqbal at 1949. Such an analysis necessarily
requires setting aside a deIendant`s personal rendition oI reality. See id.
Accordingly, while DeIendant here presents a lengthy narrative, describing in detail his own
characterization oI the Iacts, see Defendants Motion, DeIendant`s personal perceptions are irrelevant.
Indeed, perhaps in selI-conscious recognition oI this reality, DeIendant never even suggests that
PlaintiII`s Complaint is deIicient Ior a Iailure to provide adequate Iactshe merely disputes PlaintiII`s
version oI the Iacts. See Defendants Motion. Yet, this has no place in evaluating a motion to dismiss.
Because PlaintiII presents suIIicient Iacts in his Complaint to state a plausible claim, and because
DeIendant`s personal version oI the Iacts is inapposite, DeIendant`s motion to dismiss Ior Iailure to state
a claim must be denied.
B. Plaintiffs Complaint Easily Alleges Sufficient Facts to State a Claim.
1. Defendants Conduct Violated Plaintiffs First Amendment Rights.
Speech on public issues constitutes speech at the core oI First Amendment Ireedoms, New York
Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), and Internet speakers are aIIorded Iull First
Amendment protections. Reno v. ACLU, 521 U.S. 844 (1997). Indeed, there is 'no basis Ior qualiIying
the level oI First Amendment scrutiny that should be applied to |the Internet|. Reno, 521 U.S. at 870.
Further, since the internet enables anyone with a computer to "become a town crier with a voice that
resonates Iarther than it could Irom any soapbox, the necessity oI protecting internet speech is clear.
Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 430 (2009) (quoting Reno, 521 U.S. at 870). Because
the internet provides both an open Iorum Ior uninhibited discussion oI public issues and a means oI
projecting speech to wide audiences, the importance oI protecting speech cannot be overstated. See id.
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PlaintiII, like millions oI others, is a modern town crier using the internet to discuss issues oI
importance to his readers and the public at large. Complaint, 13, 31, 40. Internet bloggers` speech
constitutes Iully protected speech under the First Amendment. See Reno at 870. Protecting this speech
against inIringement is the most essential Iunction oI the First Amendment. See New York Times at 270.
Indeed, DeIendant is a public Iigure: he is (or claims to be) deeply involved in political causes, and he
advocates public policy positions through two nonproIit organizations aIIiliated with celebrity donors.
Complaint, 6-7, 11-13, 31-32. A book was even written about him, describing his Iirst Ioray into the
public spotlight as a high-level drug traIIicker turned selI-described 'political prisoner. Complaint,
31. PlaintiII`s truthIul discussion oI DeIendant`s criminal history is thereIore a matter oI public concern,
and is entitled to the Iullest, most urgent protections oI the First Amendment.
It is well-established that the Iear oI liability can have a chilling eIIect on otherwise protected
speech. See New York Times v. Sullivan, 376 U.S. 254, 279 (1964). Accordingly, an individual or media
entity might reIrain even Irom speaking truthIully in an attempt to avoid such liability. See id.
Importantly, courts have recognized that lawsuitsand even the mere threat oI a lawsuitby a private
individual can similarly chill Iree speech, in violation oI the First Amendment. See Gaylord
Entertainment Co. v. Thompson, 1998 OK 30 (1998) (noting 'Even the mere threat oI unIounded
liability would have a chilling eIIect` on the discussion oI public issues. No less oI a limitation is
imposed when, as in this case, the action is taken by a private plaintiII under the aegis oI state civil
law). Id.
Taking PlaintiII`s assertions in his Complaint as true, as required under Iqbal and as amply
demonstrated by the exhibits, DeIendant has Ior decades commandeered the court system to threaten and
actually Iile Irivolous lawsuits, chilling PlaintiII`s (and countless others`) truthIul, Iully-protected speech
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in direct violation oI First Amendment guarantees. See Complaint, 18, 20, 27, 35-40. By threatening
PlaintiII with legal liability without any justiIication, as in Gaylord, DeIendant employed state
machinery to chill PlaintiII`s speech under the aegis oI state civil law. Complaint, 21-22.
Accordingly, PlaintiII has presented suIIicient Iactual matter to establish that DeIendant violated
PlaintiII`s protected First Amendment right to speak Ireely and truthIully on matters oI public concern.
See Complaint, 37-40.
2. Defendant Abused Civil Process and Maliciously Used Process.
In Maryland, an individual commits the tort oI abuse oI process when he willIully misuses
criminal or civil process subsequent to its issuance in order to procure a result not contemplated by law.
One Thousand Fleet Ltd. Pshp. v. Guerriero, 346 Md. 29, 38 (1997); Krashes v. White, 275 Md. 549,
555 (1975). A cause oI action Ior abuse oI process lies where a plaintiII can establish that the deIendant,
in a prior suit, used process in a manner not contemplated by law; that the deIendant did so with an
ulterior motive; and, Iinally, that plaintiII suIIered damages as a direct result. Keys v. Chrysler Credit
Corporation, 303 Md. 397, 411 (1985); Berman v. Karvounis, 308 Md. 259, 262 (1987).
Here, taking PlaintiII`s assertions as true under Iqbal, PlaintiII easily alleges suIIicient Iacts in
his Complaint to state a claim Ior abuse oI process under the Keys requirements. In keeping with his
well-established tradition oI employing the courts to silence his critics, DeIendant Kimberlin Iiled
lawsuits, bar complaints, and peace order actions against PlaintiII with the ulterior motive oI silencing
PlaintiII`s truthIul writings. Complaint, 17, 34, 44, 49. DeIendant Kimberlin speciIically aimed to
prevent PlaintiII Irom Iurther criticizing Kimberlin`s use oI his nonproIits Ior neIarious ends. Complaint,
23. By threatening him with liability, DeIendant sought to Irighten PlaintiII into selI-censorship, as
DeIendant had done so Irequently and successIully in the past, so PlaintiII (like others) would reIrain
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Irom speaking critically oI DeIendant Kimberlin. In deIending himselI against these unsubstantiated
claims and Irivolous actions, PlaintiII suIIered economic damages. Complaint, 45-46. Accordingly,
PlaintiII`s Complaint presents suIIicient Iactual matter to state a claim Ior abuse oI process.
In Maryland, to establish malicious use oI process, a plaintiII must establish Iive elements. One
Thousand Fleet Ltd. Pshp. v. Guerriero, 346 Md. 29, 37 (1997) (quoting Keys, 303 Md. at 407). The
deIendant must have instituted a prior lawsuit against plaintiII with malice, and without probable cause.
Id. Malice can be inIerred Irom a lack oI probable cause. See Montgomery Ward v. Wilson, 339 Md.
701, 717 (1995). Further, the plaintiII must establish that the prior suit ended in his plaintiII`s Iavor, and
that he suIIered damages. Guerriero, 346 Md. at 37.
Here, PlaintiII alleges adequate Iacts to state a claim Ior malicious abuse oI process, according to
Guerriero. DeIendant instituted suits against plaintiII with malice, and without probable cause. See
Complaint, 42-50. These prior suits ended in PlaintiII`s Iavor, and PlaintiII suIIered damages, as he
was Iorced to spend time and money deIending against these meritless claims; Iurther, PlaintiII endured
incalculable harm to his proIessional reputation as an attorney. See Complaint, 50. Accordingly,
PlaintiII`s Complaint presents suIIicient Iactual matter to state a claim Ior malicious use oI process.
3. Defendant Tortiously Interfered with Plaintiffs Business Relationship.
Maryland has long recognized tortious interIerence with contractual and business relationships,
even in the absence oI a contract. Kaser v. Fin. Prot. Mktg., 376 Md. 621, 627 (2003). Indeed, the
elements oI this tort were initially established over one hundred years ago, and have been approvingly
cited since. See, e.g., Williams v. Wicomico County Bd. of Educ., 2012 U.S. Dist. LEXIS 141665 (2012);
Hearn Insulation & Improvement Co. v. Bonilla, 2010 U.S. Dist. LEXIS 79032, 28 (2010); Galbreath v.
Burlington Coat Factory Warehouse of Arundel, Inc., 2003 U.S. Dist. LEXIS 22622, 11 (2003);
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Dunnaville v. McCormick & Co., 21 F. Supp. 2d 527, 536 (1998). To establish tortious interIerence with
a business relationship, a plaintiII must establish that deIendant committed "'intentional acts; calculated
to cause damage to the plaintiIIs in their lawIul business; done with the unlawIul purpose to cause such
damage and loss without right or justiIiable cause . . . and actual damage and loss resulting.'" Kaser, 376
Md. at 628-629 (citing Willner v. Silverman, 109 Md. 341, 355 (1909)).
Here, PlaintiII easily provides suIIicient Iactual matter in his Complaint to IulIill the Kaser
elements and establish a claim that DeIendant tortiously interIered with PlaintiII`s business relationship
with his employer. DeIendant or his cohorts intentionally Iiled Irivolous lawsuits, peace orders, and bar
complaints against PlaintiII. See Complaint. In violation oI a Maryland court`s repeated directions,
DeIendant Iiled motions exposing PlaintiII`s identity without seal so as to make them public record.
These actions, in conjunction with DeIendant`s communications with local law enIorcement near
PlaintiII`s home, Iorced PlaintiII to notiIy his employer oI the potential threats that might result Irom
this convicted domestic terrorist or his Iollowers. DeIendant engaged in this conduct with the unlawIul
purpose oI damaging PlaintiII`s proIessional reputation as an attorney. See Complaint, 50. Not only
was PlaintiII`s reputation damaged, but DeIendant`s conduct was the proximate cause Ior PlaintiII`s
termination Irom his place oI employment. See Complaint, 50, 52. Thus, PlaintiII has alleged
adequate Iacts to state a claim that DeIendant tortiously interIered with his business relationship.

C. Venue is Proper in this District.

DeIendant broadly suggests that PlaintiII`s claim should be dismissed Ior 'improper jurisdiction
under Fed. R. Civ. P. 12 (b), but Iails to speciIy any numbered provision oI 12 (b) on which he is resting
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this deIense. Because DeIendant then continues to argue that venue is improper, PlaintiII will treat
DeIendant`s argument as a 12 (b)(3) motion and respond accordingly.
In order to survive a deIendant's motion to dismiss Ior improper venue, a plaintiII must merely
make a prima facie showing that venue in this district is proper. Mitrano v. Hawes, 377 F.3d 402, 405
(4th Cir. 2004). Under 28 U.S.C. 1391(b)(2), venue is proper in a judicial district in which a
substantial part oI the events or omissions giving rise to the claim occurred. In determining whether
events are suIIiciently substantial to permit venue, a court should review "the entire sequence oI events
underlying the claim," recognizing also that venue may be proper in more than one judicial district. Id.
(quoting Uffner v. La Reunion Francaise, S. A., 244 F.3d 38, 42 (1st Cir. 2001)).
Here, viewing the entire sequence oI events, PlaintiII has made a prima facie showing that venue
in this district is proper. See Mitrano at 405. As PlaintiII details in his Complaint, a substantial part oI
the events giving rise to the claim occurred in Maryland. DeIendant brought and maintained Irivolous
civil actions against PlaintiII in Maryland. Complaint, 42-50. Indeed, DeIendant is domiciled in
Maryland and it is here, at his base oI operations Irom his mother`s basement, the rent Ior which is paid
by DeIendant`s organizations,
5
that Kimberlin runs the organizations and plans his Irivolous litigation
and threats. See Complaint, 5. From his luxurious basement oIIices, renting in 2008 at more than $600
per year oI tax-preIerenced dollars Ior each square Ioot oI the entire property, DeIendant brought
unjustiIied bar complaints against PlaintiII, adversely impacting his ability to practice as an attorney.
Complaint, 50. Indeed, all oI DeIendant`s actions oI which PlaintiII complainsincluding his repeated
threats and instigation oI vexatious litigationat least partially occurred in, or emanated Irom,
Maryland. See Complaint, 5. Thus, a substantial part oI the events giving rise to PlaintiII`s claim

S
The rental price Ior this home has, in some years, amounted to more than 20 oI this residential
property`s entire assessed value.
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occurred in Maryland, at the spacious Iacilities paid Ior by DeIendant`s nonproIit organizations, and
venue is proper in this district.

D. Defendants Suggestion that Plaintiff Filed Suit with Improper Purpose is
Without Merit

DeIendant suggests that PlaintiII Iiled the instant suit Ior an improper purpose; more speciIically,
DeIendant posits that PlaintiII is using this case to 'harass PlaintiII, and PlaintiII`s claim should
thereIore be dismissed. Defendants Motion, p. 13. Assuming that DeIendant intended to argue that
PlaintiII is using this case to harass DeIendant, his claim is nevertheless without merit. Further, arguing
that PlaintiII had 'improper purpose is not a valid deIense allowing a court to dismiss a lawsuit under
Rule 12 oI the Federal Rules oI Civil Procedure.
1. Improper Purpose is Not a Valid Defense Upon Which a Motion to
Dismiss Can be Based

DeIendant`s argument that PlaintiII has an improper purpose is not a valid legal deIense upon
which to base a 12 (b) motion to dismiss. Under the Federal Rules, a deIendant can assert a number oI
deIenses in a motion to dismiss, including improper venue and Iailure to state a claim. Fed. R. Civ. P.
Rule 12 (b). Arguing that PlaintiII Iiled suit Ior an improper purpose is simply not a basis upon which
DeIendant can validly argue Ior dismissal, and DeIendant has presented absolutely no legal support or
case law to the contrary. See id.
2. Plaintiff Filed Suit with the Proper Purposes of Ending Defendant
Kimberlins Lawfare, Protecting Plaintiffs First Amendment Rights, and
Recovering Damages for Defendants Improper Conduct.

DeIendant`s claim that PlaintiII Iiled suit to 'harass him is meritless, as PlaintiII Iiled suit Ior
the dual purpose oI recouping monetary damages he suIIered due to DeIendant`s unlawIul conduct and
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12
preventing such unlawIul conduct Irom reoccurring. Complaint, 54-59. Indeed, DeIendant presents
no actual evidence that PlaintiII Iiled suit Ior any improper purpose. Instead, DeIendant Kimberlin
(correctly) asserts that PlaintiII sued the two non-proIits that DeIendant controls to access the
organizations` Iinancial records and 'to determine iI DeIendant committed any criminal acts based on
an extensive investigation involving numerous public documents Irom varied sources. Defendants
Motion, p. 13. This Iact weighs against DeIendant`s baseless conjectures and demonstrates that PlaintiII
has a proper purpose in Iiling suit.
Moreover, based on substantial evidence oI their abuse in Iurtherance oI Mr. Kimberlin`s
conduct, PlaintiII joined the non-proIits in this suit as a means oI determining the degree oI separation, iI
any, oI DeIendant Kimberlin Irom these organization, and the extent to which DeIendant Kimberlin is
masking improper and possibly unlawIul actions behind otherwise respectable causes that are being used
his personal beneIit. See Complaint, 6-7. DeIendant Kimberlin has a history oI such conduct.
Complaint, 23-25. As clearly described in the Complaint, PlaintiII named an anonymous blogger Ior
the same valid reasons. Complaint, 8, 24. Accordingly, PlaintiII Iiled suit Ior no improper purpose,
and simply seeks to redress his injuries and enjoin DeIendant Irom Iuture unlawIul conduct.
II. Defendants Argument that Plaintiffs Request for Relief Violates Principles of Comity
Fails to State a Claim for Which Relief Can Be Granted.

DeIendant suggests that PlaintiII`s request Ior injunctive and declaratory relieI 'violates
principles oI comity and Iederalism, and that 'PlaintiII alleges that state court requires Iederal court
oversight. Defendants Motion to Dismiss, p. 10. DeIendant presents no evidence that PlaintiII made
this allegation, and indeed, PlaintiII never made any such statement. More importantly, such an
allegation presents no basis Ior a legal complaint. Additionally, DeIendant`s suggestion that PlaintiII`s
request violates principles oI comity similarly presents no basis Ior his motion to dismiss.
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13
As DeIendant himselI recognizes, comity is a selI-imposed rule oI judicial restraintand thus
gives no independent cause oI action. Defendants Motion, p. 10. Instead, comity is merely a principle
constructed by the Iederal courts oI their own volition that quite generally encourages Iederal courts to
respect independent state Iunctions in certain instances. See Mast, Foos & Co. v. Stover Manufacturing
Co., 177 U.S. 458, 488 (1900). The notion oI comity, then, is a selI-imposed limiting principle that
Iederal judges might consider in determining justiciabilitybut cannot present grounds Ior an individual
complaint or a motion to dismiss. See id.
Even assuming, arguendo, that DeIendant is not attempting to employ the principle oI comity to
make a claim or raise a deIense, and is instead simply utilizing an inappropriate mechanism as a means
oI urging this court to abstain Irom hearing PlaintiII`s claims, the abstention doctrine is simply
inapplicable to the case at hand. It is well-established that the abstention doctrine merely encourages
Iederal courts to avoid hearing cases involving especially sensitive areas oI state law, or cases where the
relevant state law remains unclear. See Railroad Comm. v. Pullman Co., 312 U.S. 496 (1941)
(establishing and outlining the doctrine). Since neither oI these two established applications have any
bearing here, the abstention doctrine is entirely inapposite.
6


CONCLUSION

For the Ioregoing reasons, PlaintiII respectIully requests that this Court deny DeIendant`s
Motion to Dismiss.

6
Maryland statutory law provides relieI Iorand Maryland courts have similarly recognizedall oI PlaintiII`s
state law claims. Abuse oI process malicious use oI process, and tortious interIerence with contract are long-
recognized, well-established torts in Maryland. See, e.g., Krashes v. White, 275 Md. 549, 555 (1975) (deIining
abuse oI process); One Thousand Fleet Ltd. Partnership v. Guerriero, 346 Md. 29, 34 (1997) (deIining malicious
abuse oI process); Kaser v. Fin. Prot. Mktg., 376 Md. 621, 628 (2003) (recognizing tortious interIerence with
contract even in the absence oI an actual contract).
Case 8:12-cv-01852-JFM Document 25 Filed 11/16/12 Page 17 of 19

14
Respectfully submitteu,
Bateu Novembei 16, 2u12
T. Biuce uoufiey
0SBC Bistiict of Naiylanu
Bai #24S96
Law 0ffice of Biuce uoufiey
1u4S1 Nill Run Ciicle, Suite 4uu
0wings Nills, NB 21117
(41u) S61-6u61
goufieybiucegoufiey.com
facsimile: (888) 241-S1SS

s
Ban Backei, Esq.*
2u9 Pennsylvania Avenue SE, Suite 21u9
Washington, BC 2uuuS
(2u2) 21u-S4S1
Banbackei.esqgmail.com

AttorneysforPlaintiff

*Aumitteu ProHacVice



Case 8:12-cv-01852-JFM Document 25 Filed 11/16/12 Page 18 of 19

15
CERTIFICATE OF SERVICE

I hereby certiIy that on this November 16, I caused a copy oI the Ioregoing PLAINTIFF`S
MEMORANDUM IN OPPOSITION TO DEFENDANT`S MOTION TO DISMISS to be served by Iirst
class mail, postage prepaid, upon:
Mr. Brett Kimberlin
8100 Beech Tree Road
Bethesda, MD 20817

JeIIrey Cohen, Legal Representative
Justice Through Music Project
Velvet Revolution US
Millen, White, Zelano & Branigan
2200 Clarendon Blvd.
Suite 1400
Arlington, VA 22201



November 16, 2012




Dan Backer, Esq.

Case 8:12-cv-01852-JFM Document 25 Filed 11/16/12 Page 19 of 19
Redacted