Brett Kimberlin Plaintiff, Vs. National Bloggers Club, Ali Akbar, Patrick Frey, Erick Erickson, Michelle Malkin, Glenn Beck, Aaron Walker, William Hoge, Lee Stranahan, Robert Stacy McCain, J ames OKeefe, Breitbart.com, DB Capitol Strategies, The Franklin Center, Simon & Schuster, Inc., Kimberlin Unmasked, Mercury Radio Arts. The Blaze, Ace of Spades, RedState,
DEFENDANT FRANKLIN CENTER FOR GOVERNMENT ANE PUBLIC INTEGRETY MEMORANDUM OF SUPPORT MOTION TO DISMISS SECOND AMENDED COMPLAINT
Defendant Franklin Center for Government and Public Integrity (hereinafter FCGPI or Franklin Center by and through counsel, hereby moves to dismiss all claims, with prejudice, under Fed. Rule Civ. Pro. 12(b)(6) and Fed. Rule Civ. Pro. 8, for failure to state a claim upon Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 1 of 14 Page 2
which relief can be granted, and for failure to state a clear and concise claim. Franklin Center is a named defendant in Claims I (Civil RICO), V (Invasion of Privacy, False Light), VII (Interference with Prospective Economic Advantage), VIII (Intentional Infliction of Emotional Distress), and IX (Conspiracy to Commit State Law Torts). Each of these claims should be dismissed under Rule 12(b)(6) for failure to state a claim.
INTRODUCTION
On J une 24, 2014, the court granted Plaintiff Brett Kimberlins motion to file the above referenced Second Amended Complaint, with Franklin Center as a named Defendant. The amended complaint, as filed, starts out with a bizarre conspiracy theory laden narrative, involving the National Security Agency, Edward Snowden, and the J oint Threat Research Intelligence group. The first several pages of the complaint contains almost no relative information to support the Plaintiffs claims, and certainly only serves to add layers of confusion as to the nature of the Plaintiffs claims. In fact, in the 82 pages and 284 paragraphs of the complaint, only 5 paragraphs on three pages contain any specific allegations against Franklin Center. The majority of the Plaintiffs complaint only seems to focus on a few of the Defendants, specifically Defendants Nagy, Walker, and Frey. All of the other Defendants appear to be very ancillary to the Plaintiffs claims. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss a complaint for failure to state a claim upon which relief may be granted. In considering a motion to dismiss, the pleadings are construed in the light most favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true. Hamm v. Groose, 15 F.3d 110, 112 (85 th
Cir. 1994), Ossman v. Diana Corp., 825 Supp. 870 (D.Minn. 1993). Any ambiguities Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 2 of 14 Page 3
concerning the sufficiency of the claims must be resolved in favor of the nonmoving party. Ossman, 825 F.Supp. at 880. Federal Rule of Civil Procedure states the pleadings shall contain a short and plain statement of the claim showing that the pleader is entitled to relief. A pleading must contain enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Though theTwombly standard requires only a short and plain statement, [f]actual allegations must be enough to raise a right to relief above the speculative level. Id. Federal Rules of Procedure Rule 12(b)(6) provides that a complaint may be dismissed if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). A satisfactory claim for relief demand[s] more than an unadorned, the-defendant-unlawfully- harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is subject to dismissal under Rule 12(b)(6) if it merely offers labels and conclusions or a formulaic recitation of the elements of a cause of action [or] if it tenders naked assertions devoid of further factual enhancement. Id. ARGUMENT I. Complaint should be dismissed for failure to comply with Fed. Rule Civ. Pro. 8. The complaint on its face does not meet the standard of qualifying as a simple, clear, and concise under Fed. Rule Civ. Pro 8. Under the rule, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief (Fed. Rule Civ. Pro 8(a)(2), and Each allegation must be simple, concise, and direct. (Fed. Rule Civ. Pro 8(d)(1). Failure to comply with Rule 8 justifies dismissal, even for pro-se parties, if it creates an unjustified burden on the parties and on the court (SeeJones v. Natl Commns and Surveillance Networks, 266 Fed. Appx. 31, 32-33 (2d Cir. 2008) It can hardly be said that the Plaintiffs Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 3 of 14 Page 4
Second Amended Complaint contains short plain statements, nor that the statements are simple, clear and direct. The sheer 82-page length and scattered content forces every other party to pick it apart piece by piece in order to ascertain 1) which claims apply to them, 2) what allegations apply to them, and 3) what is the argument the plaintiff is trying to make in order to support their claims. This creates an unjust burden upon the parties and the court, and fails to comply with rule 8. II. Plaintiff fail to allege facts necessary to show conduct, an enterprise, and racketeering activity under 18 U.S.C. 1962(c)-(d). The Plaintiffs first claim for relief should be dismissed because the Plaintiff failed to allege the facts necessary to show defendant FGCPI engaged in conduct, enterprise, and racketeering activity under 18 U.S.C. 1962(c)-(d). Without naming FCGPI (or any other defendants) specifically, Plaintiff alleges Defendant(s) generally, engaged in racketeering activity under the federal statute. To state a claim under 1962(c), a plaintiff must allege, (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima v. Imrex Co., 473 U.S. 479, 496 (1985). As the Court discussed in Sedima, conduct is the conducting or participating in the conduct of an enterprise through a pattern of racketeering activity. Id. Pursuant to 18 U.S.C. 1961, an enterprise is any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. 1961. Racketeering activity is any act "chargeable" under several generically described state criminal laws, any act "indictable" under numerous specific federal criminal provisions, including mail and wire fraud, and any "offense" involving bankruptcy or securities fraud or drug-related activities that is "punishable" under federal law. Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 4 of 14 Page 5
18 U.S.C. 1961(1). Finally, a pattern of racketeering requires at least two acts of racketeering activity. 18 U.S.C. 1961. The Plaintiffs first claim for relief should be dismissed because the Plaintiff failed to show any of the elements of the 18 U.S.C. 1961 claim. The only conduct alleged by Plaintiff was the publication of a single press release by FCGPI informing possible participants about an online seminar, or webinar on threats to freedom of the press, (Second Amended Complaint 125), hosting the webinar (Second Amended Complaint 126), publishing a factual blog post about the Plaintiff (Second Amended Complaint 127), and co-hosting an event with the National Bloggers Club (Second Amended Complaint 128). Publicizing and hosting a webinar, and co-hosting a publicized social event are insufficient to implicate conduct in racketeering activity. The Amended Complaint fails to identify any conduct that would constitute racketeering under the applicable standard, or conduct chargeable under a criminal statute, let alone a pattern of such racketeering activity. These facts are insufficient to state a claim under 18 U.S.C. 1962(c), and, as such, Plaintiffs first claim should be dismissed. Secondly, even if the court were to construe that acts committed by others in the enterprise construed Racketeering activity, Plaintiff has insufficiently claimed that Franklin Center was even a part of the Enterprise. Plaintiff instead asserts conclusory statements stating that the Defendant joined the RICO Enterprise (Second Amended Complaint, 125), but in no way alleges any fact that shows that the Enterprise existed, or that Franklin Center was involved, nor has he filed any Exhibits which support his conclusory statements. There are no allegations of Defendant Franklin Center meeting with any other Defendants to conspire against him. He does not allege that Franklin Center participated in any crimes against him. His only Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 5 of 14 Page 6
two factual allegations against Franklin Center are that they advertised a webinar, and that they conducted a webinar. The Iqbal standard is clear. In order to survive a Motion to Dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. at 678. In this case, the Plaintiff has failed to allege factual material sufficient to show that the Franklin Center was part of a RICO enterprise, or that Franklin Center influenced or participated in any predicated events necessary to support a RICO action. III. Defendant has failed to state a claim for Invasion of Privacy False Light. In his complaint, the Plaintiff has essentially substituted False Light claims for Defamation claims which would otherwise be barred by statute of limitations. Maryland has recognized this strong nexus between false light and defamation that it treats false light in a similar matter as to defamation. In fact, "the Fourth Circuit, interpreting Maryland law, has refused to allow a claim for false light invasion of privacy to stand where the claim failed to meet the standards for defamation. Dobkin v. Johns Hopkins Univ., 1996 U.S. Dist. LEXlS 6445, 37 (D. Md. Apr. 17, 1996). a. The Plaintiffs claim for False Light is barred by statute of limitations. Maryland law has gone so far with the analogous claim between defamation and false light, that the court has adopted the Statute of Limitations for Defamation and has applied it to false light where it is an analogous claim. Smith v. Esquire, Inc., 494 F.Supp. 967,969 (D. MD, 1980), holds that when "a false light claim is essentially analogous to a libel claim ... [it] should be governed by the same statute of limitations To hold otherwise would allow a plaintiff, in any defamation action where there has been a general publication, to avoid the otherwise Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 6 of 14 Page 7
applicable one-year statute merely by phrasing the cause of action in terms of invasion of privacy. Id. at 970. Under Maryland law, the statute of limitations on a claim for defamation is one-year (Md. Courts & J udicial Proc. 5-105). Any alleged defamatory statements related to the webinar ad were made on J une 26, 2012. (Amended Complaint 125). Any alleged defamatory statements related to the webinar itself were made on J uly 9, 2012. (Amended Complaint 125). Any alleged defamatory statements related to Tabitha Hales blog post were made on May 25 th , 2012. The complaint was filed on or around October 17, 2013, which is more than one year removed from the latest date, J uly 9, 2012. This claim is therefore barred by statute of limitations and should be dismissed. b. The Defendant has failed to state a claim for Invasion of Privacy False Light. In order to state a claim for invasion of privacy, false light, in Maryland, a plaintiff must allege: (1) that the defendant gave publicity to a matter that places the plaintiff before the public in a false light; (2) that a reasonable person would find that the false light in which the other person was placed highly offensive; and (3) that the defendant had knowledge of or acted with reckless disregard as to the falsity of the publicized matter and the false light in which the defendant placed the plaintiff. Mazer v. Safeway, Inc., 398 F. Supp. 2d 412 (D. Md. 2005).
Plaintiffs claim for false light with regards to FCGPI should be dismissed because he merely recites the elements of a false light claim (Second Amended Complaint, 242-245), fails to specifically name FCGPI, and fails to challenge the veracity of statements made by FCGPI. A complaint is subject to dismissal under Rule 12(b)(6) if it merely offers labels and conclusions or a formulaic recitation of the elements of a cause of action[or] if it tenders naked assertions devoid of further factual enhancement. Ashcroft, 556 U.S. at 678. Plaintiff also fails to challenge the actual truth and veracity of the statements made by Franklin Center and therefore Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 7 of 14 Page 8
fails to state a claim for false light invasion of privacy. (Second Amended Complaint 125, 125, 127, 128). Under Maryland law, [w]here the truth is so close to the facts, the court will find that no legal harm has been done. Dobkin v. J ohns Hopkins Univ., 1996 U.S. Dist. LEXIS 6445, 29 (D. Md. Apr. 17, 1996). Additionally, Plaintiff fails to specifically name FCGPI in its Sixth Claim for Relief and instead names Defendants without any attribution to specific activity committed by FCGPI. Even if the complaint were construed to be sufficient in meeting the elements of the cause of action of false, light, the statements allegedly made by Franklin Center are either 1) true, 2) grossly misrepresented by the Plaintiff, or 3) are not disclosures of a private nature. First, when looking at the allegations in Paragraph 125 of the complaint, there are only two statements which the Plaintiff could allege place him in a false light. 1) that he had filed 100 frivilous lawsuits, and 2) that he and his associates were involved with four swatting incidents. To look at the first one, this is based on an admission by the Plaintiff in an email to Defendant Frey. In an email to Defendant Frey on October 10, 2010, the Plaintiff stated I have filed over a hundred lawsuits and another one will be no sweat for me. This statement was posted on Defendant Freys blog http://patterico.com/2010/10/11/brett-kimberlin-threatens-to-sue-me. Second, with regards to the swatting, this was not a disclosure of a private nature. Under Maryland law, in order to prevail in a false light claim, the facts disclosed "requires publicity, meaning that the disclosure of the private facts must be a public disclosure, and not a private one Furman v. Sheppard, 744 A.2d 583,587 (Md. Ct. Spec. App. 2000). By the time FCGPI published the press release on J une 26, 2012, the incidents of swatting and the allegations of Kimberlins involvement were already very public as admitted by Kimberlin (Second Amended Complaint 85, 86, 87), by appearances on CNN, Huffington Post, and on Glenn Becks radio Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 8 of 14 Page 9
program over a month prior. They could hardly be considered private facts by the time they were published. Regarding the allegations in Paragraph 126, the webinar does not contain any defamatory information about the Plaintiff. The Plaintiff states or implies that the webinar states Aaron Worthing was swatted last night and is a very high profile victim of Brett Kimberlin." This statement is contained nowhere in the webinar, and the Plaintiff has provided no transcript of the webinar that contains this statement. In fact, with regards to the swatting incidents the statements in the webinar clearly state that Kimberlin is innocent until proven guilty (Franklin Center Free Speech Webinar. https://www.youtube.com/watch?v=N9Q1vWqN7E8&list=UUrz516XcbLZXwf4ZYIRZpGg at 14:09). Most of the webinar focused on legal tactics used to suppress free speech, such as filing pro-se law suits alleging defamation, and conspiracy, and then amending lawsuits, and adding defendants to the lawsuit as conspirators so that the defendants expend time and effort trying to fight the lawsuit. In fact, it seems that much of the content of the webinar is almost like a soothsayer predicting exactly what is happening in this current lawsuit as if this had been done before by parties in this current lawsuit. Paragraph 127 of the complaint contain the only allegations by the Plaintiff of false statements by the Defendant FCGPI. He argues that FCGPI falsely stated that Plaintiff is a child molester, assassin, who has filed over 100 frivolous lawsuits, and attacked "any blogger who dared mention his name Franklin Center never accused the Plaintiff of being a child molester, this statement is completely false. In the article, FCGPI quoted from Defendant The Blaze that referred to the Plaintiff as an alleged child molester, which is a true statement because there it refers to actually allegations admitted in the Plaintiffs own authorized biography Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 9 of 14 Page 10
published about him detailing his exploits. Citizen K: The Deeply Weird American Journey of Brett Kimberlin (Singer, Mark, Knoff, New York, 1996) is an authorized biography of Plaintiff Kimberlin. In it the book insuinuates that the Plaintiff had an inappropriate relationship with a ten year old girl. (Id. at 78.) Franklin Center never stated that the Plaintiff is an assassin. Frankln Center stated that the Plaintiff is believed to have played a role in the assassination of a grandmother because, as stated in the previously mentioned authorized biography of the plaintiff, that he was suspected in having arranged a murder-for-hire of the ten year old girls grandmother (at 82, 83). As far as the allegation of filing over 100 frivolous lawsuits, this again is by the Plaintiffs own admission in an email to Defendant Frey where he stated I have filed over a hundred lawsuits and another one will be no sweat for me. (http://patterico.com/2010/10/11/brett-kimberlin-threatens-to-sue-me). Lastly, the claim fails to meet the standards for defamation, and [t]he Fourth Circuit, interpreting Maryland law, has refused to allow a claim for false light invasion of privacy to stand where the claim failed to meet the standards for defamation. Dobkin v. Johns Hopkins Univ., 1996 U.S. Dist. LEXIS 6445, 37 (D. Md. Apr. 17, 1996); See supra Section V. Under Maryland law, Plaintiffs allegation of defamation per se fails to state a claim upon which relief may be granted. To assert a defamation claim, a plaintiff must show that: (1) the defendant made a defamatory statement regarding the plaintiff to a third person; (2) the statement was false; (3) the defendant was legally at fault in making the statement; and (4) the plaintiff suffered harm thereby. S. Volkswagen, Inc. v. Centrix Fin., LLC, 357 F. Supp. 2d 837 (D. Md. 2005). Plaintiff is a public figure and is therefore further required to allege sufficient facts to show actual malice on the part of FCGPI. Dobkin v. Johns Hopkins Univ., 1996 U.S. Dist. LEXIS 6445, 45-46 (D. Md. Apr. 17, 1996). Public figures are defined as those who thrust Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 10 of 14 Page 11
themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Fitzgerald v. Penthouse Int'l, 525 F. Supp. 585, 588-589 (D. Md. 1981). Plaintiff is a public figure because he has had an authorized biography published about him detailing his exploits. Plaintiff is, in fact, admittedly the notorious Speedway Bomber who terrorized the town of Speedway Indiana in 1978. (Id.) Throughout Plaintiffs incarceration, he sought the media spotlight by claiming to have sold marijuana to former Vice President Dan Quayle (at. 90-91) and sought to tell his tale through a jailhouse press conference (at 117-119.) These facts support the conclusion that Plaintiff is a public figure and must thus show actual malice by FCGPI. Under Twombly, [f]actual allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 55. Therefore, this claim should be dismissed. IV. The Plaintiff has failed to state a claim for Interference with Potential Business Prospect.
The claim for Intereference with Potential Business Prospect, as it applies to FCGPI also fails the Twombly test. The elements of this claim are (1) intentional or willful acts; (2) calculated to cause damage to the plaintiffs in their lawful business; (3) done with the unlawful purpose to cause such damage and loss without right or justifiable cause on the part of the defendants (constituting malice); and (4) resulting in actual damage and loss. Kaser v. Fin. Prot. Mktg, Inc. 831 A.2d 49, 53 (Md. 2003). Furthermore, the Plaintiff must identify with specificity a possible future relationship which is likely to occur absent the interference. Baron Fin. Corp. v. Natanzon, 471 F. Supp. 2d 535, 546 (D. Md. 2006). More specifically, he must demonstrate that the Defendant Defendants engaged in "conduct that is independently wrongful or unlawful," Bell BCI Co. v. HRGM Corp., CIV. J FM-03-1387, 2004 WL 3222885, at *6 (D. Md. Aug. 6, 2004). Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 11 of 14 Page 12
In his complaint, the Plaintiff fails to plead how the actions of FCGPI in any way interfered with any potential business relationship with anyone. Not only does he fail to create a causal nexus between the actions of FCGPI and any future business relationship, he even fails to mention the existence or nature of any future business relationship that could possibly exist. merely recited the elements of the claim by alleging that DBCS intentionally and willfully acted to disrupt and deprive Plaintiff of future business with actual damages and loss resulting. (Second Amended Complaint, 265-68). The only possible conjecture is that the Plaintiff alleges that the Article referenced urges readers to target the State Department for working with Plaintiffs employer. (Second Amended Complaint 127). This is not true, the article has no call to action. It merely reported the fact that the State Department was indeed working with one of Kimberlins non-profit organizations. The allegations against FCGPI fail to rise above the speculative level, and therefor does not survive the Twombly standard. Therefore, Plaintiffs Claim for Relief for Interference with Prospective Economic Advantage should be dismissed. V. The Plaintiff has failed to state a claim for Intentional Infliction of Emotional Distress
In his complaint the plaintiff merely states the elements of Intentional Infliction of Emotional distress, without pleading in any detail who has done what to cause him this emotional distress. A claim for Intentional Infliction of Emotional Distress must contain the following elements. "(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe." Mitchell v. Baltimore Sun Co., 164 Md. App. 497, 883 A.2d 1008, 1024 (Md. Ct. Spec. App. 2005). In addition, Maryland Courts have cautioned the use of the tort of intentional infliction of emotional distress only in Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 12 of 14 Page 13
cases where the defendant committed "opprobrious behavior that includes truly outrageous conduct." Kentucky Fried Chicken Nat'l Mgmt. Co. v. Weathersby, 607 A.2d 8, 11 (Md. 1992). In this case the Plaintiff provides insufficient facts to allege that FCGPIs conduct was extreme or outrageous. The Amended Complaint also fails to allege a causal connection between FCGPIs conduct and the emotional distress. Plaintiffs sole accusation against FCGPI is that they posted a press release and held a webinar, and published that webinar on youtube. Even if true, this allegation is insufficient to support a claim for intentional infliction of emotional distress under Maryland Law. This claim should be dismissed under the Twombly standard. VI. Plaintiff has failed to state a claim for Conspiracy to Commit State Law Torts Like every other claim contained in the Plaintiffs complaint, the claim for conspiracy to commit state law torts is completely absent of any facts to support it. He supplies no facts to support the notion that FCGPI conspired with anyone to commit any underlying torts. He fails to identify any torts which may have been committed, and he fails to state how the committing of such torts has resulted in any injury whatsoever, each of which must be proven to show a claim for Conspiracy to Commit State Law Torts. See Green v. Washington Suburban Sanitary Commn, 259 Md. 206, 221 (1970); Hoffman v. Stamper, 385 Md. 1,24-25,867 A.2d 276,290 (2005) Furthermore, without the establishment on of an underlying tort, the claim for Conspiracy to Commit State Law Torts cannot stand alone, the absence of other tortious injury to Plaintiff, civil conspiracy is not a separate tort capable of independently awarding damages. Rood v. Rosen, 482 B.R. 132, 141-42 (D. Md. 2012). It is not enough to merely state defendants conspired with each other to commit the state law tortious acts alleged above. (Second Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 13 of 14 Page 14
Amended Complaint, 281-83). Therefore the claim for Conspiracy to Commit state law torts does not meet the Twombly standard should be dismissed. CONCLUSION Defendant FCGPI respectfully requests this court to dismiss Plaintiffs First, Second, Third, Fourth, Fifth, Sixth, and Seventh claims for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. PRAYER FOR RELIEF Defendant FCGPI, having stated its support for their motion to dismiss, prays for relief as follows: 1. An Order dismissing this case 2. An Order granting Attorneys and Costs 3. An Order enjoining Plaintiff from filing any frivolous and meritless lawsuits against Plaintiff without first receiving permission from the court vis--vis obtaining approval from a court appointed special master or by posting bond to cover fees and costs should such a claim be dismissed; 4. Any other such relief this court deems fit and proper.
Respectfully Submitted, _________/s/________ LINDA S. MERICLE, Esq. Linda S. Mericle, P.A. 7600 Hanover Parkway, Ste. 202 Greenbelt, MD 20905 Federal Bar #:09685 Local Counsel for Defendant, The Franklin Center Phone: (301) 474-2044 Fax: (301) 861-0826 Case 8:13-cv-03059-GJH Document 156-2 Filed 07/16/14 Page 14 of 14