Mem Supporting Malkin and Twitchy's MTD

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

GREENBELT DIVISION

BRETT KIMBERLIN, *

Plaintiff, *

v. * Civil Action
PWG 13-3059
NATIONAL BLOGGERS CLUB, et al., *

Defendants *

* * * * * * * * * *

MEMORANDUM IN SUPPORT OF DEFENDANT MICHELLE MALKIN AND
NON-PARTY TWITCHY'S MOTION TO DISMISS FIRST AMENDED COMPLAINT,
AND FOR ATTORNEY FEES AND COSTS

Michael F. Smith
The Smith Appellate Law Firm
1717 Pennsylvania Avenue N.W., Suite 1025
Washington, D.C. 20006
(202) 454-2860
Bar No. 29941
Counsel for Defendant Michelle Malkin
and non-party Twitchy

Date: January 27, 2014
Case 8:13-cv-03059-PWG Document 41-1 Filed 01/27/14 Page 1 of 60
i

TABLE OF CONTENTS
Page

INDEX OF AUTHORITIES......................................................................................................................iv

FACTS.........................................................................................................................................................1

I. Background facts as pleaded in the First Amended Complaint.......................................................1
II. Mr. Kimberlin's mailing to Twitchy of doctored court documents.................................................2
SUMMARY OF ARGUMENT...................................................................................................................5
ARGUMENT...............................................................................................................................................6
I. Mr. Kimberlin fails to state a claim against Mrs. Malkin as to any count,
and dismissal is appropriate under Rule 12(b)(6)..........................................................................6

A. Standard of review...............................................................................................................6

B. The RICO claim against Mrs. Malkin suffers from several fatal defects............................7
1. The FAC fails to allege injury to "business or property," and
thus Mr. Kimberlin lacks standing to bring a RICO claim......................................8

2. The FAC fails to plead properly that Mrs. Malkin is connected to
the operation or management of a RICO enterprise..............................................10

3. Mr. Kimberlin does not allege that any predicate act involving
Mrs. Malkin caused him damage...........................................................................12

4. Mr. Kimberlin also fails to properly plead predicate acts......................................13

5. The FAC fails to plead a pattern of racketeering activity......................................14

a. Closed-ended continuity............................................................................15
b. Open-ended continuity...............................................................................16
6. Mr. Kimberlin fails to sufficiently plead the existence of
an "enterprise.".......................................................................................................17

C. The 1983 claim does not implicate Mrs. Malkin............................................................19
ii

Page
D. Count III fails to state a claim under 42 U.S.C. 1985
against Mrs. Malkin...........................................................................................................20

1. Mr. Kimberlin's pleadings are fatally conclusory..................................................20
2. The FAC fails to state a claim under 1985.........................................................20
E. Mr. Kimberlin has dropped his claim for fraud/negligent misrepresentation....................22

F. The defamation claim also fails.........................................................................................22
1. The FAC fails to properly plead the elements of such a claim
with regard to Mrs. Malkin....................................................................................22

2. Even if he properly pleaded a defamation claim, Mr. Kimberlin
is libel-proof given his lengthy, well-publicized record of serious
criminal behavior...................................................................................................23

3. Mr. Kimberlin pleads an incorrect scienter standard and fails
properly to support his allegations of actual malice by Mrs. Malkin....................26

4. Any statements by Mrs. Malkin are absolutely protected by
the fair comment privilege.....................................................................................27

G. The false-light invasion of privacy claim should be dismissed.........................................27
H. Mr. Kimberlin fails to allege that Mrs. Malkin did anything that meets the
level of outrageousness required to state a claim for intentional infliction
of emotional distress..........................................................................................................28

II. Even if the complaint states a claim, it must be dismissed as an improper attempt
to chill legitimate First Amendment activities...............................................................................29

III. Mr. Kimberlin fails to allege facts in the FAC bringing Mrs. Malkin within this
Court's personal jurisdiction, and has made insufficient service of process on her.......................35

A. Standard of review.............................................................................................................35
B. Mrs. Malkin's Colorado-based activities as a blogger and commentator
do not establish sufficient minimum contacts with Maryland to support
personal jurisdiction over her.............................................................................................35

C. Service of process on Mrs. Malkin was insufficient..........................................................39
iii

Page

IV. Mr. Kimberlin's apparent falsification of court documents in an effort to dupe
Twitchy into thinking it is a defendant constitutes a fraud on the court that
warrants dismissal of this action with prejudice............................................................................40

A. Standard of review.............................................................................................................40

B. Mr. Kimberlin's evident doctoring of his own First Amended Complaint
and this Court's summons warrants dismissal...................................................................40

C. Mrs. Malkin and Twitchy should be awarded their attorney fees and costs
incurred in connection with this frivolous action..............................................................43

CONCLUSION/RELIEF REQUESTED...................................................................................................44

CERTIFICATE OF SERVICE..................................................................................................................45

iv

INDEX OF AUTHORITIES
Page
Constitutional provision
U.S. CONST., Am I..........................................................................................................................27, 29-34
Cases pertaining to plaintiff Kimberlin
Kimberlin v. Dewalt,
12 F. Supp. 2d 487 (D. Md. 1998)............................................................................................25, 26, 29

Kimberlin v. White,
7 F.3d 527 (6th Cir. 1993)................................................................................................................5, 29

United States v. Kimberlin,
483 F. Supp. 350 (S.D. Ind. 1979)....................................................................................................1, 26

Other cases
ALS Scan, Inc. v. Digital Service Consultants, Inc.,
293 F.3d 707 (4th Cir. 2002)..........................................................................................35-36, 37, 38-39

Anderson v. Found. for Advancement, Educ. and Emp't of Am. Indians,
155 F. 3d 500 (4th Cir. 1998)...............................................................................................................14

Anza v. Ideal Steel Supply Corp.,
547 U.S. 451, 126 S. Ct 1991, 164 L. Ed. 2d 720 (2006).....................................................................12

Aoude v. Mobil Oil Corp.,
892 F.2d 1115 (1st Cir. 1989)...............................................................................................................42

A.S. Abell Co. v. Kirby,
176 A.2d 340 (Md. 1961).....................................................................................................................27

Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)...........................6, 7, 8, 11-12, 14, 20, 27, 29

Barnes v. Dalton,
158 F.3d 1212 (11th Cir. 1998)............................................................................................................43

Bass v Campagnone,
838 F.2d 10 (1st Cir. 1988).....................................................................................................................9

v

Cases (cont'd) Page

Bast v. Cohen, Dunn and Sinclar, P.C.,
59 F.3d 492 (4th Cir. 1995)................................................................................................................8, 9

Batson v. Shiflett,
602 A.2d 1191 (Md. 1992)..................................................................................................23, 24, 28-29

Bell Atlantic Corp. v. Twombly,
550 U.S. 544; 127 S. Ct. 1955; 167 L. Ed. 2d 929 (2007)..............................6, 7, 11, 14, 15, 16, 22, 27

Bennett v. Centerpoint Bank,
761 F. Supp. 908 (D.N.H. 1991).............................................................................................................9

Bhari Info. Tech. Sys. Private, Ltd. v. Sriram,
2013 U.S. Dist. LEXIS 169622 (D. Md. Dec. 2, 2013)....................................................................7, 13

Bolivar v. Director of the FBI,
846 F. Supp. 163 (D.P.R. 1994)............................................................................................................39

Boyle v. United States,
556 U.S. 938, 129 S. Ct. 2237, 173 L. Ed. 2d 1265 (2009)............................................................17, 18

Brown v. Ajax Paving Industries, Inc.,
773 F. Supp. 2d 727 (E.D. Mich., 2011)...............................................................................................16

Brown v. Ferguson Enters., Inc.,
2012 U.S. Dist. LEXIS 174991 (D. Md. Dec. 11, 2012)................................................................22, 23

Burdick v. American Express Co.,
865 F.2d 527 (2d Cir. 1989)..................................................................................................................10

Calder v. Jones,
465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984)......................................................................37

Cardillo v. Doubleday, Inc.,
518 F.2d 638 (2d Cir. 1975)............................................................................................................24-25

Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc.,
334 F.3d 390 (4th Cir. 2003)..........................................................................................................35, 38

C.B.H. Resources v. Mars Forging Co.,
98 F.R.D. 564 (W.D. Pa. 1983)............................................................................................................41

vi

Cases (cont'd) Page

Chambers v. NASCO, Inc.,
501 U.S. 32, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)............................................................40, 42, 43

City of Chicago Heights v. Lobue,
914 F. Supp. 279 (N.D. Ill. 1996)...........................................................................................................9

In re City of Philadelphia Litig.,
123 F.R.D. 515 (E.D. Pa. 1988)............................................................................................................39

Colfield v. Safeway, Inc.,
2013 U.S. Dist. LEXIS 135190 (D. Md. Sept. 19, 2013).....................................................................22

Conte v. Newsday, Inc.,
703 F. Supp. 2d 126 (E.D.N.Y. 2010)..................................................................................................19

Cook v. Howard,
484 Fed. Appx. 805 (4th Cir. 2012)......................................................................................................20

Davidson-Nadwodny v. Wal-Mart Assocs., Inc.,
2008 U.S. Dist. LEXIS 45633 (D. Md. June 3, 2008)..........................................................................23

Davis v. Williams,
588 F.2d 69 (4th Cir. 1978)..................................................................................................................40

Diaz v. Gates,
420 F.3d 897 (9th Cir. 2005)................................................................................................................10

Doe v. State of Israel,
400 F. Supp. 2d 86 (D.D.C. 2005)...................................................................................................31-32

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985)......................................................................30

ESAB Group, Inc. v. Centricut, Inc.,
126 F.3d 617 (4th Cir. 1997)................................................................................................................38

Evans v. City of Chicago,
434 F.3d 916 (7th Cir. 2006)............................................................................................................8, 10

First Nat. Bank of Boston v. Bellotti,
435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978)........................................................................30

vii

Cases (cont'd) Page

Flip Mortg. Corp. v. McElhone,
841 F.2d 531 (4th Cir. 1988)............................................................................................................7, 13

Forty-Eight Insulations, Inc. v. Black,
63 B.R. 415 (N.D. Ill. 1986).................................................................................................................32

Francis v. Giacomelli,
588 F.3d 186 (4th Cir. 2009)................................................................................................................20

Furman v Sheppard,
744 A.2d 583 (Md. Ct. Spec. App. 2000).............................................................................................28

Garrison v. Louisiana,
379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964)............................................................................30

GE Inv. Private Placement Partners II v. Parker,
247 F.3d 543 (4th Cir. 2001)....................................................................................................14, 15, 16

Geraci v. Women's Alliance, Inc.,
436 F. Supp. 2d 1022 (D. N.D. 2006).....................................................................................................9

Godwin v. Marsh,
266 F. Supp. 2d 1359 (M.D. Ala. 2002)...............................................................................................43

Gregg-Wilson v. EFC Trade, Inc.,
2013 U.S. Dist. LEXIS 132824 (D. Md. July 12, 2013).......................................................................21

Grogan v. Platt,
835 F.2d 844 (11th Cir. 1988)..........................................................................................................8, 10

Harris v. Jones,
380 A.2d 611 (1977)........................................................................................................................28-29

Harrison v. KVAT Food Mgt., Inc.,
766 F.2d 155 (4th Cir. 1985)................................................................................................................21

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 2d 1250 (1944)........................................................................42

Hemi Group, LLC v. City of New York,
559 U.S. 1, 130 S. Ct. 983, 175 L. Ed. 2d 943 (2010)..........................................................................12

viii

Cases (cont'd) Page

Herrmann v. Moore,
576 F.2d 453 (2d Cir. 1976)..................................................................................................................21

Hill v. Tangherlini,
724 F.3d 965 (7th Cir. 2013)..................................................................................................................8

H.J., Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989)........................................................14, 15, 16

Holmes v. SIPC,
503 U.S. 258, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992)...................................................................8, 13

Hughes v. Ranger Coal Corp.,
467 F.2d 6 (4th Cir. 1972)....................................................................................................................20

In re Ins. Brokerage Antitrust Litig.,
618 F.3d 300 (3d Cir. 2010)............................................................................................................18, 19

Int'l Data Bank v. Zepkin,
812 F.2d 149 (4th Cir. 1987)..................................................................................................................8

Jackson v. Sedgwick Claims Mgt. Servs., Inc.,
731 F.3d 556 (6th Cir. 2013) (en banc)..................................................................................................8

Jacron Sales Co., Inc. v. Sindorf,
350 A.2d 688 (Md. 1976).....................................................................................................................23

Johnese v. Jani-King, Inc.,
2008 U.S. Dist. LEXIS 16435 (N.D. Tex. March 3, 2008).......................................................40, 41-42

Johns v. Home Depot USA, Inc.,
221 F.R.D. 400 (S.D.N.Y. 2004)..........................................................................................................21

Jungquist v. Sheik Sultan Bin Khalifa Al Nahyan,
115 F.3d 1020 (D.C. Cir. 1997)............................................................................................................39

Kahermanes v. Marchese,
361 F. Supp. 168 (E.D. Pa. 1973).........................................................................................................21

Lamb v. Rizzo,
391 F.3d 1133 (10th Cir. 2004)......................................................................................................24, 25

ix

Cases (cont'd) Page

Lolavar v. de Santibanes,
430 F.3d 221 (4th Cir. 2005)................................................................................................................39

Masson v. New Yorker Magazine,
501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991)....................................................................26

Mayfield v. NASCAR,
674 F.3d 369 (4th Cir. 2012)................................................................................................................26

McBride v. New Braunfels Herald-Zeitung,
894 S.W.2d 6 (Texas Ct. App. 1994)....................................................................................................25

McLaughlin v. McPhail,
707 F.2d 800 (4th Cir. 1983).................................................................................................................39

Menasco v. Wasserman,
886 F2d 681 (4th Cir. 1989)..................................................................................................................16

Mylan Labs., Inc. v. Akzo, N.V.,
2 F.3d 56 (4th Cir. 1993)......................................................................................................................35

NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958)........................................................................33

NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982)....................................................................33

National Hockey League v. Metropolitan Hockey Club, Inc.,
427 U.S. 639, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976)........................................................................40

National Organization for Women v. Scheidler,
510 U.S. 249, 114 S. Ct. 798, 127 L. Ed. 2d 99 (1994)...................................................................32-33

New York Times Co. v. Sullivan,
376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)....................................................................26, 30

Obsidian Finance Group v. Cox,
__ F.3d __ (9th Cir. Jan. 17, 2014)......................................................................................................34

Oregon Natural Resources Council v. Mohla,
944 F.2d 531 (9th Cir. 1991)................................................................................................................33

x

Cases (cont'd) Page

Panavision Int'l, L.P. v. Toeppen,
141 F.3d 1316 (9th Cir. 1998)..............................................................................................................36

Piscatelli v. Van Smith,
35 A.3d 1140 (Md. 2012)...............................................................................................................27, 28

Proctor v. Metro. Money Store Corp.,
645 F. Supp. 2d 464 (D. Md. 2009)......................................................................................................13

Reiter v. Sonotone Corp.,
442 U.S. 330, 99 S. Ct. 2326, 60 L. Ed. 2d 931 (1979)......................................................................8, 9

Rodgers v. Tolson,
582 F.2d 315 (4th Cir. 1978)................................................................................................................21

Rodriguez v. Quinones,
813 F. Supp. 924 (D. P.R. 1993).............................................................................................................9

Roeder v. Alpha Indus., Inc.,
814 F.2d 22 (1st Cir. 1987).....................................................................................................................9

Shepherd v. American Broadcasting Cos.,
62 F.3d 1469 (D.C. Cir. 1995)..............................................................................................................40

Simmons v. Poe,
47 F.3d 1370 (4th Cir. 1995)................................................................................................................20

Snyder v. Phelps,
580 F.3d 206 (4th Cir. 2009), aff'd, 131 S. Ct. 1207 (2011).....................................................30-31, 34

Southern Volkswagen, Inc. v Centrix Fin. LLC,
357 F. Supp. 2d 837 (D. Md. 2005)......................................................................................................22

Strag v. Bd. of Trustees,
55 F.3d 943 (4th Cir. 1995).................................................................................................................43

Tal v. Hogan,
453 F.3d 1244 (10th Cir. 2006).............................................................................................................9

Tann v. Fisher,
276 F.R.D. 190 (D. Md. 2011)........................................................................................................35, 39

xi

Cases (cont'd) Page

Target Corp. v. LCH Pavement Consultants, LLC,
2013 U.S. Dist. LEXIS 80306 (D. Minn. June 7, 2013).......................................................................18

Thomas v. Tel. Publ. Co.,
929 A.2d 991 (N.H. 2007)....................................................................................................................25

U.S. Airline Pilots Ass'n v. Awappa, LLC,
615 F.3d 312 (4th Cir. 2010)..................................................................................................................7

United States v. Bucci,
582 F.3d 108 (1st Cir. 2009).................................................................................................................34

United States v. Fiel,
35 F.3d 997 (4th Cir. 1993).................................................................................................................17

United States v. Hudson,
11 U.S. 32, 3 L. Ed. 259 (1812)............................................................................................................40

United States v. Mouzone,
687 F.3d 207 (4th Cir. 2012)................................................................................................................10

United States v. Neff,
2013 U.S. Dist. LEXIS 629 (N.D. Texas Jan. 3, 2013)..........................................................................1

United States v. Posada-Rios,
158 F.3d 832 (5th Cir. 1998)...............................................................................................................10

United States v. White,
670 F.3d 498 (4th Cir. 2012)................................................................................................................34

United States v. Wilson,
605 F.3d 985 (D.C. Cir. 2010)..............................................................................................................10

Unspam Techs., Inc. v. Chernuk,
716 F.3d 322 (4th Cir. 2013)................................................................................................................39

Virginia v. Black,
538 U.S. 343 (2003).............................................................................................................................34

Von Nichols v. Klein Tools, Inc.,
949 F.2d 1047 (8th Cir. 1991)........................................................................................................41, 42

xii

Cases (cont'd) Page

Walters v McMahen,
684 F.3d 435 (4th Cir. 2012)............................................................................................6, 7, 12, 13, 22

Wynberg v. National Enquirer, Inc.,
564 F. Supp. 924 (C.D. Cal. 1982).................................................................................................24, 25

Young v. New Haven Advocate,
315 F.3d 256 (4th Cir. 2002).....................................................................................................36-37, 38

Statutes

Md. Code Ann., Courts & Judicial Proceedings Art.
-- 5-105........................................................................................................................................23
-- 5-807(a)-(c)........................................................................................................................34-35

18 U.S.C. 1341........................................................................................................................................42

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.

-- 1959(b)(2)................................................................................................................................17
-- 1961(1)(a)................................................................................................................................32
-- 1962...........................................................................................................................................8
-- 1962(c)..............................................................................................................................12, 14
-- 1962(d)....................................................................................................................................10
-- 1964(c)......................................................................................................................................8

28 U.S.C. 1927........................................................................................................................................43

42 U.S.C. 1983............................................................................................................................19, 20, 21

42 U.S.C. 1985..................................................................................................................................20-21
--(2)................................................................................................................................................21
--(3)..........................................................................................................................................20, 21

Court rules

Fed. R. Civ. P. 4...................................................................................................................................35, 41

Fed. R. Civ. P. 5.........................................................................................................................................41

xiii

Court rules (cont'd) Page

Fed. R. Civ. P. 9(b)....................................................................................................................................13

Fed. R. Civ. P. 10.......................................................................................................................................41

Fed. R. Civ. P. 11.......................................................................................................................................41

Fed. R. Civ. P. 12(b)
--(2)......................................................................................................................................6, 35, 39
--(5)......................................................................................................................................6, 35, 39
--(6)..................................................................................................................................6, 7, 11, 27

Fed. R. Civ. P. 15.......................................................................................................................................41

Fed. R. Civ. P. 41(b)..................................................................................................................6, 40, 41, 42

Fed. R. Civ. P. 45.......................................................................................................................................41

Other authorities

American Heritage Dictionary (4th ed. 2000)...........................................................................................17

Ludington, Aiming at the Wrong Target: The "Audience Targeting" Test for
Persona Jurisdiction in Internet Defamation Cases, 73 Ohio St. L. J. 541 (2012)..............................37

1-4 Moore's Federal Practice, 4.50.........................................................................................................39

"Salem Communications Acquires Twitchy.com From Michelle Malkin," (Dec. 10, 2013)
available at http://investor.salem.cc/press-releases/salem-communications-
acquires-twitchy-com-from-mic-nasdaq-salm-1075250 ....................................................................4

Random House Dictionary of the English Language (1967).....................................................................17

Restatement (Second) of Torts 46, comment d (1965)...........................................................................28

1

FACTS
For purposes of Rule 12(b)(6), this motion will assume the truth of the allegations in the First
Amended Complaint ("FAC"). However, to the extent dismissal also is warranted for Plaintiff Brett
Kimberlin's attempted fraud on the court regarding the status of nonparty Twitchy.com ("Twitchy") as a
party to this action, that issue requires review of documents outside the FAC specifically, altered
versions of the FAC and a summons Mr. Kimberlin mailed to Twitchy in an attempt to deceive it into
believing it is a defendant, and has been summoned by this Court to respond. While Twitchy as of this
writing is not a defendant, it is joining in this motion as a non-party so that this Court is not misled by
Mr. Kimberlin into believing it has been served, but failed to respond.
I. Background facts as pleaded in the First Amended Complaint
In his 50-page FAC, Mr. Kimberlin, a convicted perjurer,
1
weaves an implausible tale of
conspiracy and concerted conduct that defies easy recapitulation. He claims some of the most prominent
names of the conservative blogosphere conspired to defame him in 2012 and 2013 by falsely accusing
him of "swatting" three of the defendants that is, calling 911 from a number made to appear to be the
victim's home phone to report a crime in progress, thereby exposing the victim to the significant risk of a
violent, armed response by a police SWAT unit. See United States v. Neff, 2013 U.S. Dist. LEXIS 629,
*8 (N.D. Texas Jan. 3, 2013). Swatting could accurately be deemed "attempted murder by cop," since it
aims to use the police to injure or kill another, and Mr. Kimberlin (in his pleading) acknowledges it as "a
serious crime." FAC, 198.
Defendant Michelle Malkin ("Mrs. Malkin") is a prominent, Colorado-based conservative
blogger and commentator with a nationwide audience. FAC, 21. Mr. Kimberlin asserts that she "used

1
United States v. Kimberlin, 483 F. Supp. 350 (S.D. Ind. 1979)
2

her blog and Twitter compiler, Twitchy, to repeatedly state that Plaintiff committed the swattings,"
FAC, 80, but his complaint makes only two specific references to her. He cites a May 2012 post on
www.michellemalkin.com entitled "Breakthrough: Fox News Covers Brett Kimberlin/Patterico
Swattings," and an April 2013 post entitled "More Celebrities Swatted, Meanwhile Anti-Brett Kimberlin
Bloggers Still Under Fire." FAC, 80-81, 99. Mr. Kimberlin alleges that in the latter piece, Mrs.
Malkin "imputed that [he] was responsible for the swatting of Defendants Frey and Walker," and
complains about one unidentified commenter to the article who opined, "Brett Kimberlin needs to wake
up with a horse's head in his bed." Id., 81. However, the FAC does not relate the text of Mrs. Malkin's
supposedly actionable statements. Id.
Other aspects of the FAC involve Mrs. Malkin only tangentially, i.e. its repeated conclusory and
general assertions regarding "defendants'" supposed conduct. See, e.g., FAC, 93-94.
II. Mr. Kimberlin's mailing to Twitchy of doctored court documents
Mr. Kimberlin filed his Complaint on October 15, 2013 and filed the FAC two days later.
Though the body of each pleading makes reference to "Defendant Twitchy," (R.1, Complaint, 23; R.2,
FAC, 25), neither lists Twitchy among the defendants in its case caption. (R.1 Complaint, p. 1; see
also Ex A to this Memorandum, p. 1 of R.2, FAC). (The original complaint listed 20 defendants in its
caption; the FAC added a 21st, DB Capitol Strategies. Id). With his original Complaint, Mr. Kimberlin
also submitted 19 proposed summonses he wished to have the Court issue, including one for Twitchy.
(R.1-2, p. 8 of 19). In mid-November, the Clerk issued all of the requested summonses, except one for
Twitchy no doubt because Twitchy never has been listed as a defendant in the caption. (R.4, 11/12/13
issued summonses, pp. 1-18; see also R.3, this Court's 11/12/13 Order regarding issuance of summons).
3

In late December, with only three of the 21 named defendants having appeared, this Court
directed Mr. Kimberlin to provide by January 10, 2014 a status update regarding his service efforts.
(R.21, 12/30/13 Letter Order). On January 3, Mr. Kimberlin sent Twitchy via certified U.S. Mail
documents purporting to be a summons directed to it, a copy of the FAC, and this Court's Letter Order,
along with a short cover letter. Ex B, Declaration of Julie Israelson & Tabs 1-5 thereto. Mr. Kimberlin
mailed the materials to California-based Salem Communications ("Salem"), an affiliate of the company
that had purchased Twitchy in December 2013, and they were received on January 6, 2014 by Salem's
Legal Department. Id.
Both the "Summons" and the "First Amended Complaint" Mr. Kimberlin mailed to Twitchy
appear to be falsified. While the FAC on file with this Court does not include Twitchy among the 21
defendants in the caption, the FAC that Mr. Kimberlin mailed to Twitchy lists in its caption 22
defendants "Twitchy" simply has been typed into the caption between defendants DB Capitol
Strategies and The Franklin Center. Compare, Ex A (R.2, p. 1) with Ex B & its Tab 2, p. 1 (first page
of FAC mailed to Twitchy). The version of the FAC mailed to Twitchy also lacks the header mark
imprinted electronically atop each page by PACER upon efiling, marks that plainly are visible on the
actual FAC. Id. It also is missing the "FILED" time-stamp affixed by the Clerk on its p. 1, Id.
Obviously, the document Mr. Kimberlin mailed to Twitchy, and represented as being the FAC, is not the
same document that is on file with this Court as R.2 it has been doctored to add Twitchy to the caption
as a defendant.
Similarly, the "Summons" Mr. Kimberlin mailed to Twitchy, and addressed to "Twitchy c/o
Salem" purports by its electronic PACER markings to be p. 14 of the 18-page set of summonses the
Clerk issued on November 12, 2013. Ex B & its Tab 1. However, page 14 of the set of summonses
4

actually issued by and on file with the Clerk is the summons directed to co-defendant Aaron Walker. Ex
C (R.4, p. 14 of 18). Mr. Kimberlin appears to have simply inserted Twitchy's name and address in
place of those of Mr. Walker, the intended recipient of the summons actually issued by this Court.
The Salem affiliate that purchased Twitchy from its previous owner, Twitchy, LLC, did not do
so until early December 2013, and the sale was not the subject of any publicity until Salem announced it
December 10 one month after the PACER-stamped date on the "Summons." See, "Salem
Communications Acquires Twitchy.com From Michelle Malkin" (Dec. 10, 2013), available at
http://investor.salem.cc/press-releases/salem-communications-acquires-twitchy-com-from-mic-nasdaq-
salm-1075250 (accessed Jan. 22, 2014). Upon information and belief, as of November 12, 2013, there
was no public knowledge of Twitchy's impending sale. Nonetheless, the "Summons" that Mr.
Kimberlin directed to "Twitchy, c/o Salem Communications," and mailed to the Salem Communications
Legal Department, bears the November 12 electronic PACER date. Ex B & its Tab 1.
The cover letter Mr. Kimberlin included with the "Summons" and the "First Amended
Complaint" plainly attempted to pass them off as legitimate court filings:
December 31, 2013
Dear Defendant in Kimberlin v. National Bloggers Club,
I previously sent you a copy of the Complaint in this case along with an informal
summons [sic].
2
As of today's date, you have not filed any pleadings in the case or
contacted in any other way. Therefore, I am sending you a formal summons along with
another copy of the case and an Order issued yesterday by the Court requiring me to
submit a status report by January 10, 2014 regarding service to you.

Please let me know that you have received this and when you will be filing your answer
in the case.

2
The "informal summons" doubtless is the Waiver of Service request Mr. Kimberline sent each
defendant in October 2013; at that point the summonses had yet to be issued.
5

Thank you,

/s/ Brett Kimberlin [Ex B & its Tab 4, 12/31/13 correspondence from plaintiff to
Twitchy].

On January 9, 2014 10 days after this Court put Mr. Kimberlin on notice, in response to
various defendants' assertion of false statements by him in court filings, that any false assertions could
be sanctioned under Rule 11 (R.21, 12/30/13 Letter Order, pp. 1-2) he told this Court in writing that he
had made "formal service to the 15 Defendants who did not respond to the informal service" including
Twitchy, through Salem. (R.27, 1/9/14 Plaintiff's Status Report Re Service of Complaint, pp. 1-3
(emphasis added); see also its Ex. B, (R.27-2, p. 1 of 2) (receipt for postage to Camarillo, CA). Of
course, Twitchy is not named as a defendant, and the Clerk declined Mr. Kimberlin's request to issue a
summons directed to it.
Mr. Kimberlin on January 3, 2014 also mailed Mrs. Malkin a copy of the FAC via certified mail
to Colorado, and it was received on January 6. He failed to include a copy of the summons directed to
her, though the copy of the FAC appears to be the one actually on file with the Court, and not the
doctored one sent to Twitchy.
SUMMARY OF ARGUMENT
The First Amended Complaint fails to state a claim for RICO or any of the other counts it
attempts to assert against Mrs. Malkin, and myriad reasons exist under Rule 12(b)(6) for dismissing the
five counts against her that Mr. Kimberlin has not already withdrawn. Mr. Kimberlin's reputation-based
claims are especially deficient, for as a convicted perjurer and the "Speedway Bomber," perpetrator of
one of the 20th Century's most notorious acts of domestic terrorism, Kimberlin v. White, 7 F.3d 527, 528
(6th Cir. 1993), he is one of the few living Americans incapable of having his reputation damaged
beyond the level to which he himself already has lowered it. He is libel-proof.
6

Additionally, the First Amendment bars Mr. Kimberlin's attempt to wield RICO and other causes
of action against Mrs. Malkin and the other defendants. This lawsuit is simply an improper attempt to
use the courts to chill legitimate First Amendment activity, and should be rejected in toto.
Dismissal also is appropriate under Fed. R. Civ. P. 12(b)(2), since Mr. Kimberlin alleges no
conduct sufficient to bring Mrs. Malkin within this Court's personal jurisdiction, and under Fed. R. Civ.
P. 12(b)(5) for insufficient service of process, since he as a party cannot make service on anyone
himself, and he still has not served Mrs. Malkin with the summons.
Finally, Mr. Kimberlin's apparent falsification of court documents in an attempt to deceive
Twitchy into thinking it was a defendant that this Court has summoned constitutes a fraud on this Court,
and a violation of numerous court rules. Leaving aside whether it also constitutes mail fraud and/or any
other criminal offense, this misconduct constitutes a separate, independent basis for dismissing the FAC
under this Court's inherent powers and/or Rule 41(b).
ARGUMENT
I. Mr. Kimberlin fails to state a claim against Mrs. Malkin as to any count, and dismissal is
appropriate under Rule 12(b)(6).

A. Standard of review

To survive a motion to dismiss under Rule 12(b)(6), a complaints allegations must plausibly, not
merely conceivably, suggest a viable claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570; 127 S.
Ct. 1955, 1974; 167 L. Ed. 2d 929 (2007). Although the Court must accept as true a complaint's factual
allegations, such deference is not accorded its legal conclusions. Walters v McMahen, 684 F.3d 435,
439 (4th Cir. 2012), citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009). The mere recital of the elements of a cause of action, followed by conclusory statements, is not
enough to survive a Rule 12(b)(6) motion. Id.
7

While plaintiff need not show his right to relief is "probable," the complaint must advance his
claim "across the line from conceivable to plausible." Walters, 684 F.3d at 439, citing Twombly, 550
U.S. at 570. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it
stops short of the line between possibility and plausibility of entitlement to relief." Iqbal 556 U.S. at
678, citing Twombly, 550 U.S. at 557 (internal quotation marks omitted).
While Mr. Kimberlin in response can be expected to cite his boilerplate Rule 12(b)(6) review
standard, see R.29, p. 1; R.30, p. 1; and R.31, p. 1, the cases on which he relies predate Twombly and
Iqbal by many years.
B. The RICO claim against Mrs. Malkin suffers from several fatal defects.
As this Court recently noted, "RICO is concerned with eradicating organized, long-term, habitual
criminal activity, not all instances of wrongdoing." Bhari Info. Tech. Sys. Private, Ltd. v. Sriram, 2013
U.S. Dist. LEXIS 169622, **6-7 (D. Md. Dec. 2, 2013) (citations and internal quotation marks omitted).
Courts "must exercise caution to ensure that RICO's extraordinary remedy does not threaten the ordinary
run of commercial transactions, while at the same time reading the terms of the statute liberally to
effectuate its remedial purposes." Id. at**6-7 (internal punctuation omitted), quoting U.S. Airline Pilots
Ass'n v. Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010). The Fourth Circuit "will not lightly permit
ordinary business contract or fraud disputes to be transformed into federal RICO claims." Id. at *7,
citing Flip Mortg. Corp. v. McElhone, 841 F.2d 531, 538 (4th Cir. 1988).
As Flip Mortgage indicates, the Fourth Circuit is concerned by the application of RICO "to a
claim that does not rise above the routine, and does not resemble the sort of extended, widespread, or
particularly dangerous pattern of racketeering which Congress intended to combat with federal
penalties." Bhari Info. Tech. Sys., 2013 U.S. Dist. LEXIS 169622, *7, citing Flip Mortg. Corp., 841 F.2d
8

at 538 and Int'l Data Bank v. Zepkin, 812 F.2d 149 (4th Cir. 1987) (internal punctuation omitted). Mr.
Kimberlin's fantastic allegations are a mere "formulaic recitation of the elements" of a RICO claim and
are not entitled to an assumption of truth. Iqbal at 680-681. But even if they were, the "plot" he alleges
amounts to, at most, a routine claim that several people decided to besmirch his reputation it comes
nowhere near the sort of "extended, widespread, or particularly dangerous pattern of racketeering" at
which Congress aimed in enacting RICO. The FAC's RICO count is serially deficient under Rule
12(b)(6) and should be dismissed.
1. The FAC fails to allege injury to "business or property," and thus Mr.
Kimberlin lacks standing to bring a RICO claim.

To establish the requisite standing under 18 U.S.C. 1964(c), a RICO plaintiff must allege 1) a
violation of 1962, 2) injury to business or property, and 3) causation of the injury by the violation.
Holmes v. Securities Investor Prot. Corp., 503 U.S. 258, 259, 112 S. Ct. 1311, 117 L. Ed. 2d 532 (1992).
The FAC fails to properly plead any of those.
The statutory requirement of injury to "business or property" is a limit Congress placed on
RICO's sweep, imported from similar language in the Clayton Act to prevent recovery under RICO for
merely any type of injury. Grogan v. Platt, 835 F.2d 844, 846-47 (11th Cir. 1988), citing Reiter v.
Sonotone Corp., 442 U.S. 330, 339, 99 S. Ct. 2326, 60 L. Ed. 2d 931 (1979). Courts have uniformly
held that allegations of personal injury fall outside its reach. Bast v. Cohen, Dunn and Sinclar, P.C., 59
F.3d 492, 495 (4th Cir. 1995); see also Jackson v. Sedgwick Claims Mgt. Servs., Inc., 731 F.3d 556 (6th
Cir. 2013) (en banc); Evans v. City of Chicago, 434 F.3d 916, 931 (7th Cir. 2006), overruled on other
grounds, Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013) ("personal injuries and the pecuniary
losses stemming therefrom do not establish standing under the RICO statute"). Mr. Kimberlin's RICO
claim is based on his general assertion that defendants damaged his reputation by "smearing" him with
9

false charges of swatting, exposing him and his family to threats, depriving him of the ability to raise
funds for his nonprofit employer, and making him spend money defending himself against this "false
narrative." FAC, 150-152. Even were those allegations true, they fail to allege harm to "business or
property" as required under 1964(c).
Defamation and other damage to reputation constitute "personal injury," and thus are not
actionable under RICO. Tal v. Hogan, 453 F.3d 1244, 1254 (10th Cir. 2006), citing Reiter, 442 U.S. at
339; see also Geraci v. Women's Alliance, Inc., 436 F. Supp. 2d 1022 (D. N.D. 2006); City of Chicago
Heights v. Lobue, 914 F. Supp. 279, 285 (N.D. Ill. 1996); Rodriguez v. Quinones, 813 F. Supp. 924,
928-929 (D. P.R. 1993) (collecting cases). As the Fourth Circuit has made clear, this includes
allegations of mental anguish. Bast, 59 F.3d at 495 (allegations of "extreme mental anguish" suffered
from alleged wiretapping are not injury to "business or property" under RICO.
To the same end, Mr. Kimberlin's allegation of intimidation through "threats of injury and
death," FAC, 134, also is not injury to "business or property." Bennett v. Centerpoint Bank, 761 F.
Supp. 908, 916 (D.N.H. 1991) (plaintiff's fears for his safety caused by phone threats of physical injury
in violation of the Hobbs Act were not injury to "business or property" sufficient to provide RICO
standing) (citing cases). To the extent Mr. Kimberlin alleges harm to his employer and/or his ability to
raise funds for it, FAC, 93, 152, he lacks standing because he is not the real party in interest for such
a claim: a RICO suit for injuries to a corporation is a corporate asset and must be vindicated by the
corporation itself; not even shareholders may bring suit derivatively. Bennett, 761 F. Supp. at 913-914,
citing Roeder v. Alpha Indus., Inc., 814 F.2d 22, 29 (1st Cir. 1987); see also, Bass v Campagnone, 838
F.2d 10, 12-13 (1st Cir. 1988) (union local, and not individual plaintiff members, were the party to
suffer any of the alleged injuries and thus is the real party in interest).
10

Finally, to the extent Mr. Kimberlin argues that damage to his employment or livelihood
constitute sufficient injury, see, e.g., R.29, p. 15, he is twice mistaken. First, the FAC does not appear to
allege that he actually lost employment due to any action of any defendant, thus he suffered no concrete
injury. More important, loss of employment and the compensation from it (had any occurred) would be
simply an indirect or secondary effect of any tortious conduct by defendants, and thus does not
constitute a cognizable claim for "injury to business or property" under 1964(c). Evans, 434 F.3d 916
(citation omitted); see also Grogan, 835 F.2d at 848 (plaintiffs may not recover under RICO for
pecuniary losses most properly understood as part of a personal injury claim); Burdick v. American
Express Co., 865 F.2d 527, 529 (2d Cir. 1989) (loss of employment does not constitute injury to
business or property under RICO; purpose of civil RICO liability does not extend to deterring any illegal
act such as retaliatory firings for which common-law remedies exist); but see Diaz v. Gates, 420 F.3d
897, 900 (9th Cir. 2005). Because Mr. Kimberlin does not allege "damage to business or property," his
RICO claim fails and should be dismissed.
2. The FAC fails to plead properly that Mrs. Malkin is connected to the
operation or management of a RICO enterprise.

RICO "does not criminalize mere association with an enterprise." United States v. Mouzone, 687
F.3d 207, 218 (4th Cir. 2012) (citation omitted). To establish a violation of 1962(d), plaintiff must
prove that an enterprise affecting interstate commerce existed, "that each defendant knowingly and
intentionally agreed with another person to conduct or participate in the affairs of the enterprise;
and...that each defendant knowingly and willfully agreed that he or some other member of the
conspiracy would commit at least two racketeering acts." Id., citing United States v. Wilson, 605 F.3d
985, 1018-19 (D.C. Cir. 2010) and United States v. Posada-Rios, 158 F.3d 832 (5th Cir. 1998) ("To
prove a RICO conspiracy[,] the government must establish (1) that two or more people agreed to
11

commit a substantive RICO offense and (2) that the defendant knew of and agreed to the overall
objective of the RICO offense"). The FAC falls far short of that standard, especially as it pertains to
Mrs. Malkin. There are simply no allegations of sufficient specificity, and plausibility, to meet that
standard with regard to any RICO enterprise.
Iqbal is especially instructive in analyzing Mr. Kimberlin's RICO claim, given the similarities
between the pleading-allegation deficiencies in that case and this one. As Iqbal notes, proper analysis of
a Rule 12(b)(6) motion begins "by identifying the allegations in the complaint that are not entitled to the
assumption of truth." Iqbal, 556 U.S. at 680. Mr. Iqbal's allegations that defendants "knew of,
condoned, and willfully and maliciously agreed to subject [him]" to harsh conditions of confinement "as
a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate
penological interest," and that the Attorney General and FBI Director were, respectively, "the principal
architect" of the policy and "instrumental" in adopting and executing it, were deemed unentitled to that
assumption:
These bare assertions, much like the pleading of conspiracy in Twombly, amount to
nothing more than a "formulaic recitation of the elements" of a constitutional
discrimination claim....As such, the allegations are conclusory and not entitled to be
assumed true. [Id. at 680-681 (internal citations omitted)].

The court made clear it was not rejecting them because they were unrealistic or nonsensical. "It is the
conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that
disentitles them to the presumption of truth." Id. at 681 (internal citation omitted).
Iqbal is fatal to Mr. Kimberlin's RICO claim. Mere detail in appending (farfetched) facts to the
elements of an offense is not sufficient to withstand dismissal, where those facts are simply woven into a
"formulaic recitation of the elements" alleging that various defendants committed this wrong or that.
This fatal shortcoming pervades every single aspect of Mr. Kimberlin's complaint, against all
12

defendants, but it is especially noteworthy as to Mrs. Malkin. Mr. Kimberlin does not allege any such
agreement on her part to be connected to any RICO enterprise, nor can he, without violating Rule 11.
He simply tosses around generalized charges that "Defendants conducted or participated in and agreed
to conspire to conduct the affairs of the RICO enterprise...." by engaging in violations of eight bullet-
pointed statutes. FAC, 119. Such boilerplate is plainly insufficient under Iqbal, and the fact that Mr.
Kimberlin's allegations are lengthy and convoluted does not immunize them from dismissal.
3. Mr. Kimberlin does not allege that any predicate act involving Mrs. Malkin
caused him damage.

For purposes of RICO, the compensable injury resulting from a violation of 18 U.S.C. 1962(c)
necessarily is the harm caused by the predicate acts, "which must be related sufficiently to each other
that they constitute a pattern." Walters, 684 F.3d at 444, citing Anza v. Ideal Steel Supply Corp., 547
U.S. 451, 453 (2006). The RICO predicate acts "must not only be a 'but for' cause of a plaintiff's injury,
but the proximate cause of that injury, as well." Id., citing Hemi Group, LLC v. City of New York, 559
U.S. 1, 9, 130 S. Ct. 983, 175 L. Ed. 2d 943 (2010).
The FAC falls far short in this regard, offering only a single catch-all paragraph attempting to
allege causation of injury by all 21 named defendants. FAC, 152. It fails to tie either but-for or
proximate causation to any specific predicate act, but rather simply alleges five types of vague harms.
Some of them, even had they occurred, were not suffered by Mr. Kimberlin, i.e. "having his employer
defamed." Others, by their plain terms, are tied to some act other than the predicate offenses, i.e. having
to spend time and money "defending against the false narratives." Id. There is no allegation of "direct
relations between the injury asserted and the injurious conduct alleged," instead there is simply a
presumed link that is too remote, contingent and indirect to establish a claim. Hemi Group, LLC, 559
13

U.S. at 9, citing Holmes, 503 U.S. at 271. The FAC fails to properly plead causation, and should be
dismissed.
4. Mr. Kimberlin also fails to properly plead predicate acts.

When mail and wire fraud are asserted as the predicate acts for a civil RICO claim, the
heightened pleading standards of Rule 9(b) apply. Proctor v. Metro. Money Store Corp., 645 F. Supp. 2d
464, 473 (D. Md. 2009). While Rule 9(b) allows intent, knowledge and other conditions of a person's
mind to be alleged generally, plaintiff "must allege 'the time, place and contents of the false
representations, as well as the identity of the person making the misrepresentation and what he obtained
thereby." Bhari Info. Tech. Sys. Private, Ltd., 2013 U.S. Dist. LEXIS 169622, **5-6 (citations omitted).
Mr. Kimberlin's allegations regarding the predicate offenses of mail fraud and wire fraud are
hopelessly deficient when measured against Rule 9(b). The counts make no mention of any activity by
Mrs. Malkin, must less conduct that alleges the "time, place and false contents" of anything she wrote,
or that any such writings were then used to establish mail or wire fraud. FAC, 121-130. With regard
to all defendants, Mr. Kimberlin's allegations amount to at most the routine type of dispute to which the
Fourth Circuit has cautioned RICO should not be extended. Flip Mortg. Corp., 841 F.2d at 538. But as
to Mrs. Malkin specifically, they certainly fall short of the standard needed to survive dismissal. See,
Walters, 684 F.3d at 445 (dismissal granted where plaintiff failed to allege a plausible violation of either
RICO predicate act).
Mr. Kimberlin's purported use of obstruction of justice as a predicate offense, FAC, 131-136,
also fails to state a claim as to any defendant, including Mrs. Malkin. His claim is based on the
allegation that defendants "falsely accused [him] of swatting, and provided false evidence to the FBI and
state and local law-enforcement officials...," Id., 131. He echoes that charge regarding information
14

supposedly sent to unspecified members of Congress, the Attorney General, and various Maryland law-
enforcement officials and judges. Id., 132-136. But he fails to allege that Mrs. Malkin provided any
such information to any of those individuals: rather, he is upset about two blog posts she wrote. And
each of his other asserted predicate acts (retaliation, extortion, money laundering) also fail to plead that
conduct by Mrs. Malkin. FAC, 137-144. Moreover, all are hopelessly deficient under Iqbal. Mr.
Kimberlin's failure to plead a predicate act by Mrs. Malkin warrants dismissal of his RICO count against
her.
5. The FAC fails to plead a pattern of racketeering activity.

Mr. Kimberlin also fails to allege a "pattern" of racketeering activity, as required to state a RICO
claim. RICO prohibits being "associated with any enterprise...[and] conduct[ing] or participat[ing]...in
the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. 1962(c).
Merely alleging two or more predicate acts is insufficient to meeting the "pattern of racketeering"
requirement; "rather, a plaintiff must allege a continuing pattern and a relationship among the
defendant's activities showing they had the same or similar purposes." Anderson v. Found. for
Advancement, Educ. and Emp't of Am. Indians, 155 F. 3d 500, 505 (4th Cir. 1998), citing H.J., Inc. v.
Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989), abrogated on
other grounds, Twombly, 550 U.S. at 562-563; see also GE Inv. Private Placement Partners II v.
Parker, 247 F.3d 543, 549 (4th Cir. 2001).
Continuity refers "either to a closed period of repeated conduct, or to past conduct that by its
nature projects into the future with a threat of repetition." GE Inv. Private Placement Partners, II, 247
F.3d at 549, quoting H.J., Inc., 492 U.S. at 241. Closed-ended continuity may be established by a
"series of related predicates extending over a substantial period of time." Id., citing H.J., Inc., 492 U.S.
15

at 242. However, "[p]redicate acts extending over a few weeks or months and threatening no future
criminal conduct do not satisfy this requirement." Id. "Open-ended continuity may be established where,
for example, the 'related predicates themselves involve a distinct threat of long-term racketeering
activity,' or where the predicate acts 'are part of an ongoing entity's regular way of doing business...or of
conducting or participating in an ongoing and legitimate RICO enterprise.'" Id., quoting H.J., Inc., 492
U.S. at 242-243.
The FAC fails to allege facts establishing either type of continuity.
a. Closed-ended continuity
Though Mr. Kimberlin alleges generically that the predicate acts began in August 2010 and
continue to the present, FAC, 145, a period of more than three years, the allegations regarding Mrs.
Malkin are limited to two website posts over an 11-month period, one in May 2012 and the other in
April 2013. FAC 80-81, 99. With regard to the broader alleged RICO enterprise, his allegations span
a far shorter period of time. By the complaint's own account, the National Bloggers Club was formed in
February 2012 and its supposedly orchestrated "smear" of Mr. Kimberlin took place three months later.
FAC, 48-49. The alleged solicitation of funds from donors began only at that point, Id., 50. (The
only actions Mr. Kimberlin alleges in 2010 are an unspecified "contact" by Andrew Breitbart to
defendants Frey and Nagy; a single blog post by Mr. Nagy; and the lawsuit Mr. Kimberlin himself filed
in Maryland state court. FAC, 32-34).
A plaintiff's obligation "to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Twombly, 550 U.S. at 555. In applying that directive for purposes of resolving a motion to dismiss a
RICO claim based on a lack of "continuity," a District Court thus should look beyond the pleading's
16

vagaries to its specifics. See Brown v. Ajax Paving Industries, Inc., 773 F. Supp. 2d 727, 741 (E.D.
Mich., 2011) (applying Twombly, court disregarded plaintiff's generalized allegation of racketeering
activity over four years and instead focused on specific instances of conduct which spanned only 15
months; complaint failed to plead closed-ended continuity). Here, Mr. Kimberlin has failed to offer any
specifics to show Mrs. Malkin undertook a series of predicate acts over a substantial period of time, or
that her actions constitute a threat of any criminal conduct, much less a threat of future conduct.
Dismissal is warranted.
b. Open-ended continuity
Likewise, Mr. Kimberlin fails to allege open-ended continuity sufficient to show a pattern of
racketeering activity. He alleges neither related predicates that themselves involve a distinct threat of
long-term racketeering activity, nor that any predicate acts are part of the supposed enterprise's "regular
way of doing business." GE Inv. Private Placement Partners, II, 247 F.3d at 549, quoting H.J., Inc.,
492 U.S. at 242-243. Instead, he simply complains of various supposed acts that have been undertaken
against him, acts that even by his account do not have a consistent motive: while some are designed to
boost the financial fortunes of some defendants, others by Mr. Kimberlin's telling are simply an effort to
unleash state and federal law-enforcement officials against him.
RICO liability is reserved for ongoing unlawful activities whose scope and persistence pose a
special threat to social well-being. Menasco v. Wasserman, 886 F2d 681, 684 (4th Cir. 1989). Blog
posts and website commentary regarding Mr. Kimberlin, and the suspicious circumstances under which
three conservative commentators have been "swatted," hardly meet that standard.

17

6. Mr. Kimberlin fails to sufficiently plead the existence of an "enterprise."

A RICO "enterprise" under 18 U.S.C. 1959(b)(2) is proved "by evidence of an ongoing
organization, formal or informal, and by evidence that the various associates function as a continuing
unit....The hallmark concepts that identify RICO enterprises are 'continuity, unity, shared purpose and
identifiable structure.'" United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1993) (citations omitted).
"[A]n association-in-fact enterprise must have at least three structural features: a purpose, relationships
among those associated with the enterprise, and longevity sufficient to permit these associates to pursue
the enterprise's purpose." Boyle v. United States, 556 U.S. 938, 945, 129 S. Ct. 2237, 173 L. Ed. 2d
1265 (2009). While a group need not have rigid hierarchical structures, it must function as a continuing
unit and remain in existence long enough to pursue a course of conduct. Id. Boyle also stresses the
significance of interrelationship between, or among, the various members of the association:
[T]he term structure means "[t]he way in which parts are arranged or put together to form
a whole" and "[t]he interrelation or arrangement of parts in a complex entity." American
Heritage Dictionary 1718 (4th ed. 2000); see also Random House Dictionary of the
English Language 1410 (1967) (defining structure to mean, among other things, "the
pattern of relationships, as of status or friendship, existing among the members of a group
or society") [556 U.S. at 945-946].

The FAC fails to plead any facts sufficient to establish an "enterprise." Instead it offers the
conclusory allegation that "[a]ll defendants and unnamed persons" constitute "the RICO Enterprise,"
FAC, 114, then restates in boilerplate fashion various elements of a RICO offense. Id., 115-120.
To the extent it alleges any organizational tendencies, it suggests that defendant National Bloggers Club
was formed in February 2012 by various individual defendants for the purpose of targeting Mr.
Kimberlin "at all costs." Id., 46-54. These defendants in some unspecified way then were able, by
calling an "Everyone Blog About Brett Kimberlin Day," to enlist "scores of bloggers" to post stories
"smearing" him and disseminating them widely via Twitter. Id., 48-50. In that fashion, the FAC
18

alleges, defendants National Bloggers Club and Akbar were able to generate financial contributions
from readers. Id. at 50-51.
The allegations amount to an assertion of a "rimless hub and spoke" operation, with the National
Bloggers Club and a handful of individual defendants at the center, and other defendants somehow
associated to carry out the common purpose, but with no coordination or relationship between the
various other defendants constituting the "spokes." Indeed, the FAC lacks any description of how this
"enterprise" functioned and coordinated its efforts to carry out this "smear" campaign, from the "hub" to
the various "spokes." The closest it comes is in fact nonsensical, at one point painting the various
"spokes" as themselves having been misled by the "hub":
Many people relied on Defendants' fraudulent representations about swattings, and then
wrote blog posts and articles based on those false representations defaming Plaintiff as
being involved with the swattings. [FAC, 173].
3

Post-Boyle, such allegations have routinely been deemed insufficient to plead an "enterprise"
because they plausibly allege at most, mere parallel conduct. See, In re Ins. Brokerage Antitrust Litig.,
618 F.3d 300, 374 (3d Cir. 2010) (allegations of a RICO enterprise with insurance broker at center and
numerous insurers as the spokes "do not plausibly imply concerted action as opposed to merely
parallel conduct by the insurers, and therefore cannot provide a 'rim' enclosing the 'spokes' of these
alleged 'hub-and-spoke' enterprises"); accord Target Corp. v. LCH Pavement Consultants, LLC, 2013

3
Elsewhere, Mr. Kimberlin himself describes the alleged "enterprise" in terms that establish it as a
classic "hub and spoke" operation:

Most of the Defendants are members of, paid by or otherwise involved with the National
Bloggers Club in some fashion. Defendant Ali Akbar is the boss, Patrick Frey is the
consigliore, DB Capitol Strategies is the legal muscle, and various other defendants are
the lynch mob, taking orders from Defendants Akbar and Frey to harass Plaintiff through
various means such as physical assault, stalking, malicious legal filings, and false
allegations online. [R. 1/17/14 Resp. to to Hoge/Walker motion to dismiss, p. 14].
19

U.S. Dist. LEXIS 80306 (D. Minn. June 7, 2013) (alleged "enterprise" consisting of retailer's nationwide
paving consultant at hub of bid-rigging scheme with numerous paving contractors failed to constitute
association-in-fact enterprise because "the complaint alleges no rim...no nonclusory factual allegations
to support a reasonable inference of relationships among the Defendant paving contractors"); Conte v.
Newsday, Inc., 703 F. Supp. 2d 126, 135 (E.D.N.Y. 2010) (alleged organization consisting of
newspaper, newspaper employees and independent contractors set up to engage in circulation and
advertising fraud was not an association-in-fact enterprise; "plaintiff fails to allege how each defendant
associated with the other defendants in the alleged enterprise, what the defendants' roles were in any
alleged enterprise, the structure and functioning of the alleged enterprise, or even a coherent common
purpose of the enterprise").
A "basic requirement" of an association-in-fact enterprise is that "the components function as a
unit, that they be 'put together to form a whole.'" In re Ins. Brokerage Antitrust Litig., 618 F.3d at 374,
citing Boyle, 556 U.S. at 945. The FAC is completely lacking in any nonconclusory allegations
establishing that. For the vast majority of defendants, including Mrs. Malkin, there is no explanation or
elaboration whatsoever as to how he, she, or it relate to this supposed "enterprise," how each obtained
and agreed to carry out the enterprise's marching orders its "common purpose" of smearing Brett
Kimberlin. The FAC fails to properly plead a RICO enterprise, and dismissal is warranted.
C. The 1983 claim does not implicate Mrs. Malkin.
Count II is directed solely at defendant Frey; as to Mrs. Malkin it must be dismissed, as even Mr.
Kimberlin agrees. (R.30, Plaintiff's 1/17/14 response to DB Capitol's motion to dismiss, p. 13).

20

D. Count III fails to state a claim under 42 U.S.C. 1985 against Mrs. Malkin.

1. Mr. Kimberlin's pleadings are fatally conclusory.
As noted, Iqbal requires more than that a plaintiff simply attach facts to the elements of a cause
of action. Mr. Kimberlin's pleading allegations in Count III do nothing to assert a plausible claim
against Mrs. Malkin, or any defendant, under 42 U.S.C. 1985. Instead, they constitute a one-page
boilerplate recitation of the elements of a civil offense under that statute. FAC, p. 42. They fall far short
of the line of plausibility, and warrant dismissal. Francis v. Giacomelli, 588 F.3d 186, 196-197 (4th Cir.
2009) (citations omitted); Cook v. Howard, 484 Fed. Appx. 805, 810 (4th Cir. 2012) (affirming
dismissal of 1983 and 1985 claims against defendant-county where complaint repeatedly sets forth
legal conclusions masquerading as factual allegations).
2. The FAC fails to state a claim under 1985.
To plead a violation of 1985, a plaintiff "must demonstrate with specific facts that the
defendants were 'motivated by a specific class-based, invidiously discriminatory animus to deprive the
plaintiff of the equal enjoyment of rights secured by the law to all." Francis, 588 F.3d at 196-197
(internal punctuation omitted), citing Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995); see also Id. at
1377 ("the law is well settled that to prove a section 1985 'conspiracy,' a claimant must show an
agreement or a 'meeting of the minds' by defendants to violate the claimant's constitutional rights"); see
also Hughes v. Ranger Coal Corp., 467 F.2d 6, 8-9 (4th Cir. 1972). A complaint alleging purposeful
discrimination towards an individual, with no allegation of racial or otherwise class-based motivation, is
insufficient under 1985(3). Hughes, 467 F.2d at 9 (citation and internal quotation marks omitted).
Not only is Count III completely silent with regard to any such class-based, invidiously
discriminatory animus on Mrs. Malkin's part, FAC, 161-167, Mr. Kimberlin pleads himself right out of
21

this count as to all defendants. He alleges that the motivation for the supposed "conspiracy" against him
was a mistaken belief that he was behind the swattings of defendants Frey, Erickson and Walker. Even
assuming the truth of that allegation, it plainly is not class-based discrimination, and Count III should be
dismissed.
Moreover, to the extent Mr. Kimberlin tries to paint himself as the victim of a politically
motivated vendetta, that too is not actionable. Although the circuits split on whether discriminatory
animus directed at a class based on political affiliation is actionable under 1985(3), the Fourth Circuit
agrees with the weight of authority that it is not. See, Harrison v. KVAT Food Mgt., Inc., 766 F.2d 155,
163 (4th Cir. 1985); see also, Rodgers v. Tolson, 582 F.2d 315, 317-318 (4th Cir. 1978) (class defined as
those in "political and philosophical opposition" to defendants too indefinable to give rise to 1985(3)
claim). And of course, Mr. Kimberlin does not even allege he was targeted as a result of any class to
which he belongs; instead he claims defendants sought to chill his various rights as an individual.
To the extent Mr. Kimberlin bases his 1985(3) claim on his assertion that defendants made
false criminal accusations against him regarding swatting, FAC, p. 42, it is settled that "[t]he deliberate
giving of false information by an individual to a police officer to cause the arrest of another does not
give rise to a cause of action under the Civil Rights Acts." Kahermanes v. Marchese, 361 F. Supp. 168,
171 (E.D. Pa. 1973), citing 42 U.S.C. 1983 and 1985; accord Gregg-Wilson v. EFC Trade, Inc., 2013
U.S. Dist. LEXIS 132824, **19-20 (D. Md. July 12, 2013); Johns v. Home Depot USA, Inc., 221 F.R.D.
400, 405 (S.D.N.Y. 2004) (citations omitted) ( 1983 claim).
Further, Mr. Kimberlin states no claim under 1985(2) because he does not allege that Mrs.
Malkin interfered with his attendance at or participation in any state or federal judicial proceeding.
Herrmann v. Moore, 576 F.2d 453, 457-458 (2d Cir. 1976); Johns, 221 F.R.D. at 406 (citations omitted).
22

Lastly, for the reasons discussed in Section I above regarding the RICO claim, Mr. Kimberlin
has not alleged, with the requisite specificity, injury to him caused by any act of Mrs. Malkin and
resulting from an alleged conspiracy. His pleading allegations do not advance his claim "across the line
from conceivable to plausible," rendering dismissal appropriate. Walters, 684 F.3d at 439, citing
Twombly, 550 U.S. at 570.
E. Mr. Kimberlin has dropped his claim for fraud/negligent misrepresentation.

Count four, for fraud and negligent misrepresentation, was legally insupportable for numerous
reasons, which plaintiff himself has now recognized by withdrawing it as to all defendants. R.E. 29
(1/17/14 response to defendants Hoge and Walker motion to dismiss), p. 27.
F. The defamation claim also fails.
1. The FAC fails to properly plead the elements of such a claim with regard to
Mrs. Malkin.

To establish a claim for defamation under Maryland law, the 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 at fault in making the statement; and 4) the plaintiff suffered harm as a result.
Southern Volkswagen, Inc. v Centrix Fin. LLC, 357 F. Supp. 2d 837, 843 (D. Md. 2005). This Court
repeatedly has dismissed defamation counts that fail to plead the elements of such a claim, or even
recount the specific text of the allegedly defamatory comment(s). See, Colfield v. Safeway, Inc., 2013
U.S. Dist. LEXIS 135190, **33-34 & n.37 (D. Md. Sept. 19, 2013) (dismissing claim where complaint
failed to allege the specific defamatory statement about plaintiff or to whom it was published, and
contained only generalized assertions about the alleged comments and to whom and when they were
published), citing Brown v. Ferguson Enters., Inc., 2012 U.S. Dist. LEXIS 174991 (D. Md. Dec. 11,
2012) (dismissing defamation claim where plaintiff failed to plead the content of the statement and when
23

or how it was communicated); Davidson-Nadwodny v. Wal-Mart Assocs., Inc., 2008 U.S. Dist. LEXIS
45633 (D. Md. June 3, 2008) (dismissing defamation claim where plaintiff failed to allege content of
statements or to whom they were made).
Mr. Kimberlin's allegations against Mrs. Malkin are hopelessly vague and insufficient. He gives
two general descriptions mentioning the headlines of the allegedly defamatory articles, and provides
URL addresses to each, but fails to give any detail about what they say, how it is defamatory, or what
about either is false. FAC, 80-81, 99. He offers nothing as to the actual substance of those pieces,
and certainly does not set forth the allegedly offending text. The closest he comes to offering detail is
when he cites one unidentified commenter to the latter article who said, "Brett Kimberlin needs to wake
up with a horse's head in his bed." Id., 81.
In a defamation action in Maryland, plaintiff bears the burden of proving falsity. Brown, 2012
U.S. Dist. LEXIS 17449 at *6, citing Jacron Sales Co., Inc. v. Sindorf, 350 A.2d 688, 694-698 (Md.
1976). Mr. Kimberlin's failure to even to plead the text of the allegedly defamatory remarks by Mrs.
Malkin, and the paucity and insufficiency in general of his defamation-claim averments, renders him
incapable of meeting that burden. Dismissal of this count is warranted.
4

2. Even if he properly pleaded a defamation claim, Mr. Kimberlin is libel-proof
given his lengthy, well-publicized record of serious criminal behavior.

The threshold question of whether a publication is defamatory in and of itself, or whether, in
light of the extrinsic facts, it is reasonably capable of a defamatory interpretation, is one for the court,
upon reviewing the statement as a whole. Batson v. Shiflett, 602 A.2d 1191, 1210 (Md. 1992) (citation
omitted). "A defamatory statement is one which tends to expose a person to public scorn, hatred,

4
Any claim relating to Mrs. Malkin's May 2012 post, FAC, 80, also is barred by Maryland's one-year
limitation period for defamation actions. Md. Code Ann., Courts & Judicial Proceedings Art. 5-105,
as are claims against any defendant based on any statement made on or before October 14, 2012.
24

contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or
from associating or dealing with, that person." Id. Mr. Kimberlin cannot meet that standard, because
nothing Mrs. Malkin (or any defendant) allegedly wrote, or could conceivably write, would lower his
estimation in the public's eyes any further than has his own conduct.
In Cardillo v. Doubleday, Inc., 518 F.2d 638 (2d Cir. 1975), plaintiff sued for libel the authors
and publisher of a book, My Life in the Mafia. Affirming the grant of summary judgment in defendants'
favor, the Second Circuit recounted plaintiff's extensive background of securities fraud, bail jumping,
receiving stolen property, and other wrongdoing, and found as a matter of law that he was 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." 518 F.3d at 639-640 (citations omitted). As the court noted, "[w]ith Cardillo himself
having a record and relationships or associations like these, we cannot envisage any jury awarding, or
court sustaining, an award under any circumstances for more than a few cents' damages, even if Cardillo
were to prevail on the difficult legal issues with which he would be faced." Id. at 640. Other courts
have likewise deemed libel-proof other career ne'er-do-wells. See, Lamb v. Rizzo, 391 F.3d 1133, 1139
(10th Cir. 2004) (predicting that Kansas Supreme Court would dismiss libel claim brought by plaintiff
convicted 31 years earlier of an offense similar to others recounted in the allegedly libelous statements)
(citing cases).
Indeed, an individual can be rendered libel-proof via conduct that does not even give rise to
criminal conviction. See Wynberg v. National Enquirer, Inc., 564 F. Supp. 924, 928-29 (C.D. Cal.
1982) (plaintiff was rendered libel-proof and could not sue over allegedly defamatory allegations
regarding his taking financial advantage of Elizabeth Taylor, not only by his string of convictions for
25

crimes involving mistreatment of women, but also due to his specific reputation for taking financial
advantage of Ms. Taylor in ways that did not lead to criminal charges). As the 10th Circuit noted,
When...an individual engages in conspicuously anti-social or even criminal behavior,
which is widely reported to the public, his reputation diminishes proportionately.
Depending upon the nature of the conduct, the number of offenses, and the degree and
range of publicity received, there comes a time when the individual's reputation for
specific conduct, or his general reputation for honesty and fair dealing is sufficiently low
in the public's estimation that he can recover only nominal damages for subsequent
defamatory statements.

First Amendment considerations of free press and speech, promoting society's interest in
uninhibited, robust, and wide-open discussion, must prevail over an individual's interest
in his reputation in such cases. An individual who engages in certain anti-social or
criminal behavior and suffers a diminished reputation may be "libel proof" as a matter of
law, as it relates to that specific behavior. Lamb, 391 F.3d at 1137-38, quoting
Wynberg, 564 F. Supp. at 928.

Even those courts that have adopted the libel-proof plaintiff doctrine reluctantly, and advise its use only
"cautiously," set its parameters in such a way to plainly include Mr. Kimberlin:
To justify applying the doctrine, the evidence of record must show not only that the
plaintiff engaged in criminal or anti-social behavior in the past, but also that his activities
were widely reported to the public. The evidence on the nature of the conduct, the
number of offenses, and the degree and range of publicity received must make it clear, as
a matter of law, that the plaintiff's reputation could not have suffered from the publication
of the false and libelous statement. [Thomas v. Tel. Publ. Co., 929 A.2d 991, 1005 (N.H.
2007), citing McBride v. New Braunfels Herald-Zeitung, 894 S.W.2d 6, 10 (Texas Ct.
App. 1994) (citations omitted) (discussing two types of libel-proof plaintiff doctrine and
applying the "issue-specific" type].

The libel-proof plaintiff doctrine warrants dismissal of the defamation count, since Mr.
Kimberlin's lengthy record renders him even less reputable than the plaintiffs in the above cases. As
lengthy as Cardillo's record was, he doesn't appear ever to have conspired with intent to distribute
10,000 pounds of marijuana loaded onto a Colombian airplane, or illegally possessed and/or used the
seal of the President of the United States or Department of Defense insignia, or impersonated a federal
officer, or received explosives as a convicted felon. Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 489-490
26

(D. Md. 1998). Cardillo was not a convicted perjurer. United States v. Kimberlin, 483 F. Supp. 350
(S.D. Ind. 1979). He never conducted a bombing spree in which an innocent couple leaving a high-
school football game were permanently injured and maimed, and then, after one victim eventually
committed suicide, sued the surviving widow. Kimberlin, 12 F. Supp. 2d at 490 (citation omitted).
Simply put, even if Mr. Kimberlin's complaint allegations were true, and even disregarding his failure to
describe with particularity the defamatory statements he attributes to Mrs. Malkin, FAC 80-81, 99,
nothing she (or any defendant) wrote could possibly lower his public standing further than the
subterranean level to which his own depraved conduct has taken it.
3. Mr. Kimberlin pleads an incorrect scienter standard and fails properly to
support his allegations of actual malice by Mrs. Malkin.

Where a plaintiff is a public figure, as Kimberlin unquestionably is,
5
"he cannot recover unless
he shows by clear and convincing evidence that the defendant published the defamatory statement with
actual malice, i.e. with 'knowledge that it was false or with reckless disregard of whether it was false or
not.'" Masson v. New Yorker Magazine, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991), citing
New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). "Mere
negligence does not suffice. Rather, the plaintiff must demonstrate that the author in fact entertained
serious doubts as to the truth of [her] publication, or acted with a high degree of awareness of probable
falsity." Id (citations and internal punctuation omitted). Mr. Kimberlin's claim that all defendants acted
negligently, FAC, 186, plainly falls short of that standard, and his boilerplate allegations as to actual
malice likewise fall short. Mayfield v. NASCAR, 674 F.3d 369, 377-378 (4th Cir. 2012) (defamation

5
Mr. Kimberlin elsewhere has offered vague docket notations from a Maryland state-court action
purporting to decline to find him a "public figure." But such notations are meaningless without knowing
the context in which the ruling was made, the arguments raised by the parties, or the rationale of the
ruling court, and in any event, they plainly do not bind Mrs. Malkin, who was not a party to any such
action.
27

claim properly dismissed under Rule 12(b)(6); "[plaintiffs'] assertion that [defendants'] statements 'were
known by them to be false at the time they were made, were malicious or were made with reckless
disregard as to their veracity' is entirely insufficient. This kind of conclusory allegation a mere
recitation of the legal standard is precisely the sort of allegations that Twombly and Iqbal rejected")
(internal brackets omitted).
4. Any statements by Mrs. Malkin are absolutely protected by the fair comment
privilege.

Under the "fair comment" privilege as Maryland recognizes it,
...any member of the community may, without liability, honestly express a fair and
reasonable opinion or comment on matters of legitimate public interest. The reason given
is that such discussion is in the furtherance of an interest of social importance, and
therefore it is held entitled to protection even at the expense of uncompensated harm to
the plaintiff's reputation. [Piscatelli v. Van Smith, 35 A.3d 1140, 1151-52 (Md. 2012),
citing A.S. Abell Co. v. Kirby, 176 A.2d 340, 342 (Md. 1961)].

"Thus, the fair comment privilege is available for opinions or comments regarding matters of legitimate
public interest." Id. (emphasis added). In Piscatelli, the Court of Appeals addressed whether "the
occurrence or prosecution of crimes" was a matter of legitimate public interest, and declared that "[t]his
principle seems obvious." Id. Even if Mr. Kimberlin had properly pleaded the specific text of any
allegedly defamatory statement by Mrs. Malkin, it would be protected by the fair comment privilege.
6

G. The false-light invasion of privacy claim should be dismissed.
As with many of his other claims, Mr. Kimberlin's Count VI simply restates the elements for the
tort of false light invasion of privacy, without in any way attempting to tie them to the specific acts of
Mrs. Malkin, or any defendant. FAC, 196-207. Iqbal requires more, 556 U.S. at 678. The complaint
fails to state a claim and should be dismissed.

6
The First-Amendment bar against Mr. Kimberlin's defamation (and other) claims is discussed
separately infra, in Section II.
28

Further, though Mr. Kimberlin couches in sinister terms the few specific allegations he relates to
Mrs. Malkin, closer examination of the material he provides belies that assertion. Thus, while 81 of
the FAC asserts that Mrs. Malkin through her blog "imputed that [he] was responsible for the swatting
of Defendants Frey and Walker," the supposedly offending article he cites is entitled "More Celebrities
Swatted, Meanwhile Anti-Brett Kimberlin Bloggers Still Under Fire." Where Mr. Kimberlin's own
complaint recounts the swattings, and is premised on the charge that various defendants indeed are
"Anti-Brett Kimberlin Bloggers," he cannot establish anything about that that relates to the disclosure of
private facts to the public at large. Furman v Sheppard, 744 A.2d 583, 587 (Md. Ct. Spec. App. 2000).
Finally, "false light" claims in Maryland are subject to the same legal standards as defamation
claims. Piscatelli, 35 A.3d at 1146-47 (citations omitted). The same pleading deficiencies discussed
above that warrant dismissal of the defamation claim against Mrs. Malkin, apply equally to compel
dismissal of the FAC's false-light claim.
H. Mr. Kimberlin fails to allege that Mrs. Malkin did anything that meets the level of
outrageousness required to state a claim for intentional infliction of emotional
distress.

Maryland law restricts the tort of intentional infliction of emotion distress only to conduct that is
truly "outrageous," i.e. "so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community." Batson, 602 A.2d at 1216,
citing Harris v. Jones, 380 A.2d 611, 614 (1977) and Restatement (Second) of Torts 46, comment d
(1965). The issue is for the court in the first instance, and "in addressing that question, the court must
consider not only the conduct itself but also the 'personality of the individual to whom the misconduct is
directed.' Batson, 602 A.2d at 1216, citing Harris, 380 A.2d at 615. "This high standard of culpability
29

exists to screen out claims amounting to "mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities" that simply must be endured as part of life." Id.
There is no need to gild this lily. Mr. Kimberlin's "personality" is well-established and
documented publicly in many places, including various volumes of the Federal Reporter and Federal
Supplement.
7
A handful of constitutionally-protected blog posts by Mrs. Malkin regarding Mr.
Kimberlin, and the highly suspicious circumstances in which three political commentators have been
exposed to the high risk of having lethal police force unleashed on them at their homes, falls far short of
the standard needed to establish "outrageousness." Dismissal is warranted.
8

II. Even if the complaint states a claim, it must be dismissed as an improper attempt to chill
legitimate First Amendment activities.

Paradoxically, given his status as a convicted perjurer, the convicted "Speedway Bomber," the
man who injected himself into a Presidential election by claiming to have sold marijuana to one of the
running mates,
9
and other widely reported instances of notorious conduct, Mr. Kimberlin argues that he
is somehow not a "public figure" for purposes of First Amendment analysis. (R.29 Resp. to
Hoge/Walker motion to dismiss, p. 7; R.30 Resp. to DB Capitol Strategies motion to dismiss, p. 17; see
also fn. 5, supra). Leaving aside momentarily the untenable nature of that claim, it is simply irrelevant.

7
See, e.g., Kimberlin, 7 F.3d at 528-529 ("The blast tore off [the victim's] lower right leg and two
fingers, and embedded bomb fragments in his wife's leg. [The victim] was hospitalized for six weeks,
during which he was forced to undergo nine operations to complete the amputation of his leg, reattach
two fingers, repair damage to his inner ear, and remove bomb fragments from his stomach, chest, and
arm. In February 1983, he committed suicide").
8
Mr. Kimberlin also does not, and cannot, plead any causal connection between conduct by Mrs.
Malkin and the actions he alleges caused him severe emotional distress: the supposed "assault" by
defendant Walker, the "many threats of death and injury" to him and his family, and "demands for [his]
arrest and imprisonment." FAC, 210. See Batson, 602 A.2d at 1216. His allegations also are merely
conclusory, insufficient under Iqbal.
9
Kimberlin v DeWalt, 12 F. Supp. 2d 487, 490-491 (D. Md. 1998).
30

The First Amendment's Free Speech Clause can serve as a defense in state tort suits. Snyder v
Phelps, 131 S. Ct. 1207, 1215 (2011). The proper focus is not so much on the private/public figure
distinction on which Mr. Kimberlin dwells, but on whether the blog posts, commentary and other speech
at the heart of his claim deal with matters of public or private concern. Snyder, 131 S. Ct. at 1215
(whether the First Amendment immunizes speech from state tort liability "turns largely on whether that
speech is of public or private concern, as determined by all the circumstances of the case"). Since the
speech here plainly dealt with matters of public concern, Mr. Kimberlin's claims are not actionable.
"[S]peech on 'matters of public concern'...is 'at the heart of the First Amendment's protection.'"
Id., citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-759, 105 S. Ct. 2939,
86 L. Ed. 2d 593 (1985) (opinion of Powell, J.) and First Nat. Bank of Boston v. Bellotti, 435 U.S. 765,
776, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978)). "The First Amendment reflects a profound national
commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."
Id., citing New York Times v. Sullivan, 376 U.S. at 270 (internal punctuation omitted). Because "speech
concerning public affairs is more than self-expression; it is the essence of self-government," speech
regarding public issues "occupies the highest rung of the hierarchy of First Amendment values, and is
entitled to special protection." Id., citing Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S. Ct. 209, 13 L.
Ed. 2d 125 (1964) and Connick v. Myers, 461 U.S. 138, 145, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983).
Speech deals with matters of public concern "when it can 'be fairly considered as relating to any
matter of political, social, or other concern to the community'...or when it 'is a subject of legitimate news
interest; that is, a subject of general interest and of value and concern to the public.'" Snyder, 131 S. Ct.
at 1216 (citations omitted). Determining whether speech is of public or private concern requires a court
to examine the "content, form, and context" of that speech, and the court is obligated to make an
31

independent examination of the whole record to make sure that the judgment does not constitute a
forbidden intrusion on the field of free expression. Id. (citations and quotation marks omitted). No
factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what
was said, where it was said, and how it was said.
Speech relating to Mr. Kimberlin and the circumstances in which three conservative bloggers
and commentators found themselves the victims of "swatting," certainly is of public concern. The
content and context of the challenged speech certainly relates to an issue "of broad interest to society at
large," Snyder, 131 S. Ct. at 1216-17: whether the political views of three bloggers exposed them to a
"swatting" attack at the hands of a man who has been shown to have no compunction about using deadly
violence. Likewise, the form in which the comments were made, on publicly available websites devoted
to political and contemporary-issue discussion, shows them to be matters of public concern. And finally
their context also supports that view: defendants were exercising their First Amendment rights to shed
light upon a situation arguably being used to suppress First Amendment rights. It is difficult to imagine
speech that could have more to do with issues of public concern, then whether or not a convicted
domestic terrorist is behind potentially deadly attacks that seem to have the common thread of targeting
outspoken conservative commentators on the American political and social scene with whose views
the man in question strongly disagrees.
The First Amendment bars not only Mr. Kimberlin's state-law claims but his RICO and other
federal counts, as well. In Doe v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005), a group of
anonymous Palestinians sued the Israeli government, its security and military forces, and others,
including a New Jersey-based religious organization whose website accepted contributions for Israeli
settlement activities in the West Bank (the "Rinat defendants"). Like Mr. Kimberlin, the lead plaintiff,
32

Doe, asserted claims under RICO and a broad variety of state tort claims against the organization and its
spiritual leader and former president. The court ultimately dismissed the claims as non-justiciable
political questions, but in analyzing 1961(1)(a)'s definition of "racketeering activity" ("any act or
threat involving murder, kidnapping" or other specified offenses) it noted the chilling effect RICO's
application could have in that instance. "Although Congress intended RICO to have a broad reach, the
Court will not so lightly imply an intent that RICO should constitute an omnipresent blanket of liability
that could chill a wide range of economic and First Amendment activity." 400 F. Supp. 2d at 118.
Other courts have similarly expressed concerns over RICO inhibiting legitimate First Amendment
activity. See, e.g., Forty-Eight Insulations, Inc. v. Black, 63 B.R. 415, 418 (N.D. Ill. 1986) (allowing
misstatements in bankruptcy petition to form basis for mail fraud-related RICO claim could chill rights
under the Petition Clause).
In National Organization for Women v. Scheidler, 510 U.S. 249, 114 S. Ct. 798, 127 L. Ed. 2d
99 (1994), the Supreme Court in holding that RICO does not contain an economic-motive requirement,
declined to address the question of whether the statute's application to pro-life protesters chilled their
First Amendment activities. 510 U.S. at 262 n.6. Writing separately to emphasize why an economic-
motive test would be both over- and underprotective of First Amendment interests, Justice Souter
(joined by Justice Kennedy) noted that while acts of violence are undeserving of protection, "entities
engaging in vigorous but fully protected expression might fail the proposed economic-motive test (for
even protest movements need money) and so be left exposed to harassing RICO suits." 510 U.S. at 264
(Souter, J., concurring). As he noted:
...it is important to stress that nothing in the Court's opinion precludes a RICO defendant
from raising the First Amendment in its defense in a particular case. Conduct alleged to
amount to Hobbs Act extortion, for example, or one of the other, somewhat elastic RICO
33

predicate acts may turn out to be fully protected First Amendment activity, entitling the
defendant to dismissal on that basis.

Id., citing, inter alia, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 917, 102 S. Ct. 3409, 73 L. Ed.
2d 1215 (1982) (state common-law prohibition on malicious interference with business could not, under
the circumstances, be constitutionally applied to a civil-rights boycott of white merchants); NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958) (though RICO
violation was established, First Amendment barred court-order relief compelling NAACP to produce
membership lists); and Oregon Natural Resources Council v. Mohla, 944 F.2d 531 (9th Cir. 1991)
(applying heightened pleading standard to complaint based on presumptively protected First
Amendment conduct). Concluding, Justice Souter deemed it "prudent" to note that RICO actions "could
deter protected activity and to caution courts applying RICO to bear in mind the First Amendment
interests that could be at stake." 510 U.S. at 265 (Souter, J., concurring).
This is precisely such a case. Mr. Kimberlin seeks to use this litigation, especially RICO and its
potent treble-damage provisions, to silence Mrs. Malkin and other conservative commentators from
discussing whether he is simply continuing his domestic-terrorist activities by another means, i.e. by
"swatting" his personal and ideological foes. By plaintiff's own account he seeks to impose liability on
Mrs. Malkin for her own blog postings, and the reposting of others', regarding activities that bear strong
indicia of being politically motivated. FAC, 80-81, 99. Given his past conduct, which include his
controversial 11th-hour role in a hotly contested presidential election, and his act of leaving an
explosive-laden gym bag in a high-school parking lot where it maimed an innocent bystander, this is no
mere academic discussion, but rather a pressing issue of societal significance. The conduct for which
Mr. Kimberlin seeks to hold Mrs. Malkin liable is expressive activity that goes to the very heart of the
34

First Amendment, and this action must be dismissed as violative of Mrs. Malkin's First Amendment
rights.
Mrs. Malkin and all the defendants are entitled to First Amendment protections, which are not
solely the province of the brick-and-mortar "institutional press" but which belong to all Americans.
Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir. 2009); see also Obsidian Finance Group v. Cox, __
F.3d __, slip op. at 11 (9th Cir. Jan. 17, 2014) (citations omitted) Nothing she is alleged to have posted
comes remotely close to meeting the standard of being a "true threat" that would take her commentary
outside the zone of First Amendment protection. See generally, United States v. White, 670 F.3d 498,
508-509 (4th Cir. 2012), citing Virginia v. Black, 538 U.S. 343, 359 (2003) (unprotected threat is "where
the speaker means to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals"). Accordingly, Mrs. Malkin's commentary is
well within the scope of the First Amendment, and Mr. Kimberlin's attempted use of RICO must yield to
her constitutional rights.
10
Boiled to its essence, Mr. Kimberlin's lawsuit seeks to chill public
discussion by Mrs. Malkin and a broad swath of conservative online and broadcast commentators, via
use of RICO and other federal and state causes of action to bludgeon them into silence. Even if the FAC
stated a valid RICO, defamation, false light or other claims, which it does not, the First Amendment bars
such an effort.
11

10
Even if Twitchy were a defendant, which it is not, like the other websites and blogs Mr. Kimberlin
targets with this case, it, too, is protected by the First Amendment. United States v. Bucci, 582 F.3d 108,
112 n.2 (1st Cir. 2009) (criminal defendant's website posting information about informants assumed to
be subject to First Amendment protection) (citation omitted).

11
For similar reasons, in the event this Court had personal jurisdiction over Mrs. Malkin (see infra), the
matter also would be subject to dismissal under Maryland's anti-"SLAPP" statute: the FAC as it relates
to Mrs. Malkin falls squarely within the statutory definition of a "strategic lawsuit against public
35

III. Mr. Kimberlin fails to allege facts in the FAC bringing Mrs. Malkin within this Court's
personal jurisdiction, and has made insufficient service of process on her.

When a court's personal jurisdiction is properly challenged under Rule 12(b)(2), "the burden [is]
on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Mylan
Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993).
If the sufficiency of service of process is challenged under Fed. R. Civ. P. 12(b)(5), plaintiff
bears the burden of establishing its validity under Rule 4. Tann v. Fisher, 276 F.R.D. 190, 192 (D. Md.
2011) (citations omitted).
B. Mrs. Malkin's Colorado-based activities as a blogger and commentator do not
establish sufficient minimum contacts with Maryland to support personal
jurisdiction over her.

In cases involving out-of-state websites, the question for personal-jurisdiction purposes is
"whether a person electronically transmitting or enabling the transmission of information via the Internet
to Maryland, causing injury there, subjects the person to the jurisdiction of a court in Maryland." ALS
Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002). In other words, "when
has an out-of-state citizen, through electronic contacts, 'entered' the State via the Internet for
jurisdictional purposes"? Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390,
398-399 (4th Cir. 2003), citing ALS Scan, 293 F.3d at 713 (internal quotation marks and ellipses
omitted). Under the facts as the FAC pleads them, Mrs. Malkin does not have sufficient minimum
contacts with Maryland to support jurisdiction. Dismissal is warranted.

participation," see Md. Code Ann., Courts & Judicial Proceedings Art. 5-807(a), (b), and Mrs. Malkin
is immunized from civil liability as a result. Md. Code Ann., C.J.P. 5-807(c).
36

"[A] State may, consistent with due process, exercise judicial power over a person outside of the
State when that person (1) directs electronic activity into the State, (2) with the manifested intent of
engaging in business or other interactions within the State, and (3) that activity creates, in a person
within the State, a potential cause of action cognizable in the State's courts. ALS Scan, 293 F.3d at 714.
Under that analysis, for any non-Maryland defendant to this action to fall within this Court's jurisdiction,
he or she must have intentionally focused on reaching Maryland readers.
Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), illustrates this. In Young, a
Virginia prison warden sued a Connecticut newspaper and four editors and reporters who, in reporting
on Connecticut's practice of housing prisoners in Virginia, wrote and posted on the newspaper's website
articles that implied the warden was racist and encourage guards to abuse inmates. Reversing the
district court's denial of defendants' motion to dismiss, the Fourth Circuit noted that the mere fact the
articles were viewable, and thus caused injury, in Virginia, was not sufficient to establish personal
jurisdiction. When the internet activity is the posting of articles on a website, the court held, ALS Scan's
first two issues should be analyzed together: that is, have defendants "manifested an intent to direct their
website content which included certain articles discussing conditions in a Virginia prison to a
Virginia audience." Young 315 F.3d at 263. The mere fact the website was viewable anywhere could
not by itself show that defendants were "intentionally directing their website content to a Virginia
audience":
Something more than posting and accessibility is needed to indicate that the newspapers
purposefully (albeit electronically) direct their activity in a substantial way to the forum
state, Virginia. The newspapers must, through the Internet posting, manifest an intent to
focus on Virginia readers. [Id., citing Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316,
1321 (9th Cir. 1998) (emphasis added; internal quotation marks and brackets omitted)].

37

Because the website was aimed primarily at a non-Virginia (i.e. Connecticut) audience, and the articles
discussed the warden and Virginia only in the context of issues of concern to that audience, it could not
support a conclusion that the newspaper posted the articles "with the manifest intent of targeting
Virginia readers." Young, 315 F.3d at 264. Accordingly, defendants "could not have reasonably
anticipated being haled into court [there] to answer for the truth of the statements made in their articles,"
and there were insufficient minimum contacts to support personal jurisdiction. Id., citing Calder v.
Jones, 465 U.S. 783, 790, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). Even critics of Young concede that
its "audience targeting" test constitutes a "strict limit on jurisdiction over foreign defendants in libel
cases" in the Fourth Circuit. Ludington, Aiming at the Wrong Target: The "Audience Targeting" Test
for Personal Jurisdiction in Internet Defamation Cases, 73 Ohio St. L. J. 541, 551 (2012). Young
"strongly protects foreign libel defendants who have published on the Internet from being sued outside
of their home states." Id at 543 & n.4 (citing cases).
Young and ALS Scan compel dismissal of the FAC as to Mrs. Malkin (and others) for lack of
personal jurisdiction. Nothing it asserts supports a conclusion that Mrs. Malkin wrote or posted
anything "with the manifest intent of targeting [Maryland] readers." Just as the newspaper website in
Young was geared primarily toward readers in New Haven and Connecticut, and thus did not have the
"manifest intent of targeting Virginia readers," so to Mrs. Malkin's postings are aimed at a nationwide
audience. Mr. Kimberlin's own fevered pleading allegations buttress this. FAC, 11, 94. Moreover,
to the extent Mrs. Malkin's writings discussed purported swatting activities by Mr. Kimberlin, or
anyone else she did so from Colorado, and the swattings of defendants Frey, Erickson, and Walker
took place in California, Georgia, and Virginia, respectively, FAC 58-62. Mr. Kimberlin does not,
and cannot, allege that any posting of Mrs. Malkin on that subject was somehow targeting readers in
38

Maryland. Indeed, Mr. Kimberlin himself alleges defendants are motivated in part by a desire for
"driving their blogs to higher rankings of Internet search engines such as Google." FAC, 94. This is
insufficient to support personal jurisdiction in Maryland over Mrs. Malkin.
Even focusing on alleged harm to Mr. Kimberlin in Maryland does not salvage his claim.
"[A]lthough the place that the plaintiff feels the alleged injury is plainly relevant to the jurisdictional
inquiry, it must ultimately be accompanied by the defendant's own sufficient minimum contacts with the
state if jurisdiction...is to be upheld." Young, 315 F.3d at 262, quoting ESAB Group, Inc. v. Centricut,
Inc., 126 F.3d 617, 626 (4th Cir. 1997) (internal brackets and ellipses omitted); see also ALS Scan, 293
F.3d at 714, and Carefirst of Maryland, 334 F.3d at 401 (citing all three cases). While Mr. Kimberlin
plainly is aware of the jurisdictional deficiencies of his complaint the bulk of the changes to the
original complaint made in the FAC filed two days later, were to allege that various postings were "read
in Maryland" that is insufficient to establish personal jurisdiction under Young and ALS Scan.
Policy considerations also counsel strongly against exercising personal jurisdiction. Mrs. Malkin
and other defendants have a nationwide reach, and recognizing sufficient minimum contacts to bring
them within Maryland's jurisdiction would doubtless subject online commentators of any political or
philosophical stripe to litigation in all the 50 States. The Fourth Circuit has rejected such a system.
"The Internet is omnipresent when a person places information on the Internet, he can communicate
with persons in virtually every jurisdiction...It would be difficult to accept a structural arrangement in
which each State has unlimited judicial power over every citizen in each other State who uses the
Internet." ALS Scan, 293 F.3d at 712-713. "If [a court] were to conclude as a general principle that a
person's act of placing information on the Internet subjects that person to personal jurisdiction in each
39

State in which the information is accessed, then the defense of personal jurisdiction, in the sense that a
State has geographically limited judicial power, would no longer exist." Id. at 712.
Mr. Kimberlin's allegations against Mrs. Malkin cannot be the basis for summoning her into
court in Maryland, without vitiating the defense of personal jurisdiction and having a severely chilling
effect on internet speech. Dismissal under Rule 12(b))(2) is appropriate.
12

C. Service of process on Mrs. Malkin was insufficient.
Dismissal also is warranted under Rule 12(b)(5). Mr. Kimberlin originally mailed Mrs. Malkin
the FAC in October 2013 and requested that she waive service; she did not. R.27, Status Report, p. 2.
On January 3, 2014 he mailed her a copy of the FAC but did not include a summons, which as of this
writing he has yet to send her ironic indeed, since he apparently went to the trouble of falsifying a
summons to send to Twitchy (see infra).
The procedure for serving a summons is set out in Rule 4, and failure to comply with it justifies
dismissal under Rule 12(b)(5). Tann, 276 F.R.D. at 192-193. "Service of a complaint without a
summons constitutes ineffective service of process." 1-4 Moore's Federal Practice, 4.50, citing
Bolivar v. Director of the FBI, 846 F. Supp. 163, 166 (D.P.R. 1994) and In re City of Philadelphia

12
Nor can Mr. Kimberlin establish sufficient minimum contacts under a "conspiracy theory" of
jurisdiction, which would require him to make "a plausible claim" that 1) a conspiracy existed, 2) Mrs.
Malkin participated and 3) a coconspirator's activities in furtherance of the conspiracy had sufficient
contacts with Maryland to subject that conspirator to jurisdiction there. Unspam Techs., Inc. v. Chernuk,
716 F.3d 322, 329 (4th Cir. 2013) (emphasis added), citing Lolavar v. de Santibanes, 430 F.3d 221, 229
(4th Cir. 2005) and McLaughlin v. McPhail, 707 F.2d 800, 807 (4th Cir. 1983) (per curiam). To meet
that test, Kimberlin "would have to rely on more than 'bare allegations,' and would have to "plead with
particularity the conspiracy as well as the over acts within the forum taken in furtherance of it." Id,
citing Lolavar and Jungquist v. Sheik Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C. Cir.
1997). The First Amended Complaint makes no specific allegation as to Mrs. Malkin and participation
in the supposed conspiracy; rather it apparently lumps her within its myriad vague, general references to
"defendants," "many other defendants and members of the National Bloggers Club," etc. See, e.g., FAC,
46-59. These are insufficient as to nearly all defendants; they certainly fail to establish minimum
contacts with Maryland on Mrs. Malkin's part.
40

Litig., 123 F.R.D. 515, 518 (E.D. Pa. 1988). Though myriad other bases justify dismissal of the FAC,
Mr. Kimberlin's insufficient service of process does, as well.
IV. Mr. Kimberlin's apparent falsification of court documents in an effort to dupe Twitchy into
thinking it is a defendant constitutes a fraud on the court that warrants dismissal of this
action with prejudice.


A Federal court has discretion to dismiss an action for misconduct that abuses the judicial
process or tampers with the administration of justice. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111
S. Ct. 2123, 115 L. Ed. 2d 27 (1991). Dismissal with prejudice under Rule 41(b) for violating the court
rules or a court order also is within the court's discretion. Davis v. Williams, 588 F.2d 69, 70 (4th Cir.
1978), citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S. Ct.
2778, 49 L. Ed. 2d 747 (1976).
B. Mr. Kimberlin's evident doctoring of his own First Amended Complaint and this
Court's summons warrants dismissal.

A Federal District Court possesses inherent powers that are necessary to the exercise of all
others. Johnese v. Jani-King, Inc., 2008 U.S. Dist. LEXIS 16435, **4-5 (N.D. Tex. March 3, 2008),
citing Chambers, 501 U.S. at 43, and United States v. Hudson, 11 U.S. 32, 34, 3 L. Ed. 259 (1812).
Though a court should exercise those powers with restraint, they extend to dismissing a case with
prejudice for a litigant's misconduct if the court considers lesser sanctions, and determines they would
not suffice. Id. at *5, citing Shepherd v. American Broadcasting Cos., 62 F.3d 1469, 1479 (D.C. Cir.
1995) (collecting cases). Fed. R. Civ. P. 41(b) also provides a basis for dismissing with prejudice,
where a plaintiff engages in misconduct constituting a violation of the court rules or a court order.
C.B.H. Resources v. Mars Forging Co., 98 F.R.D. 564, 569 (W.D. Pa. 1983).
41

Fraud on the court has been described as "a scheme to interfere with the judicial machinery
performing the task of impartial adjudication, as by preventing the opposing party from fairly presenting
his case or defense." Von Nichols v. Klein Tools, Inc., 949 F.2d 1047, 1048 (8th Cir. 1991) (citations
omitted). "A finding of fraud on the court is justified only by the most egregious misconduct directed to
the court itself, such as...fabrication of evidence by counsel, and must be supported by clear,
unequivocal and convincing evidence." Id. (citations omitted). Mr. Kimberlin's brazen misconduct in
apparently forging both the case caption and the summons, which he then mailed to Twitchy, amounts to
fraud on the court, and is so egregious that the only appropriate sanction (in this forum) is dismissal of
his action with prejudice.
In C.B.H. Resources, supra, plaintiff secured a witness's presence for deposition by having its
counsel present the witness with a document plaintiff claimed was a valid subpoena, but which was not.
Plaintiff's abuse of the court's process under Fed. R. Civ. P. 45 was a sufficiently egregious rule
violation to warrant involuntary dismissal under Rule 41(b). 98 F.R.D. at 568-569. So too here, Mr.
Kimberlin's actions violate numerous provisions of Fed. R. Civ. P. 4 (Summons), 5 (Serving and Filing
Pleadings and Other Papers), 10 (Form of Pleadings), 11 (Signing Pleadings and Representations to the
Court), and 15 (Amended and Supplemental Pleadings), to name just a few. And his pro se status is no
excuse. Leaving aside that Mr. Kimberlin's ample litigation experience probably makes him more
knowledgeable of the rules than many lawyers, see R.19-1, p. 1 ("I have filed over 100 lawsuits and
another one will be no sweat for me"), every schoolchild knows not to take an official document, alter it,
then try to pass it off as something other than what it is.
"Tampering with the administration of justice...involves far more than an injury to a single
litigant. It is a wrong against the institutions set up to protect and safeguard the public." Johnese at *5,
42

citing Chambers, 501 U.S. at 44 and, inter alia, Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.
1989) (dismissing case in which plaintiff attached fabricated document to complaint; "[i]t strikes us as
elementary that a federal district court possesses the inherent powers to deny the court's processes to one
who defiles the judicial system by committing a fraud on the court"). And Aoude noted that:
Courts cannot lack the power to defend their integrity against unscrupulous marauders; if
that were so, it would place at risk the very fundament of the judicial system. As Justice
Black wrote in a case involving a not-dissimilar fraud:

Tampering with the administration of justice in the manner indisputably shown
here involves far more than an injury to a single litigant. It is a wrong against the
institutions set up to protect and safeguard the public, institutions in which fraud
cannot complacently be tolerated consistently with the good order of
society....The public welfare demands that the agencies of public justice be not so
impotent that they must always be mute and helpless victims of deception and
fraud.

All in all, we find it surpassingly difficult to conceive of a more appropriate use of a
court's inherent power than to protect the sanctity of the judicial process -- to combat
those who would dare to practice unmitigated fraud upon the court itself. [Aoude, 892
F.2d at 1119, citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246, 64
S. Ct. 997, 88 L. Ed. 2d 1250 (1944)].

Leaving aside the issue of whether Mr. Kimberlin's actions amount to mail fraud
13
or other criminal
conduct, they certainly constitute "defil[ing] the judicial system," Id., and "the most egregious
misconduct directed to the court itself," Von Nichols, 949 F.2d at 1048, justifying dismissal under the
Court's inherent authority and/or Rule 41(b). The First Amended Complaint should be dismissed with
prejudice, as to Mrs. Malkin and all defendants.

13
18 U.S.C. 1341.
43

C. Mrs. Malkin and Twitchy should be awarded their attorney fees and costs incurred
in connection with this frivolous action.

While a pro se litigant may not be subjected to an award of fees and costs under 28 U.S.C.
1927, since the statute applies only to counsel, the court may make such an award under its same
inherent powers discussed above. Godwin v. Marsh, 266 F. Supp. 2d 1355, 1360 (M.D. Ala. 2002),
citing Chambers, 501 U.S. at 44, 46, 50; see also Strag v. Bd. of Trustees, 55 F.3d 943, 955 (4th Cir.
1995) (affirming award of fees as sanction under court's inherent authority). "The key to unlocking a
court's inherent power is a finding of bad faith." Godwin, 266 F. Supp. 2d at 1360, citing Barnes v.
Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (internal quotation marks omitted). In Godwin, the
district court found sufficient bad faith where, among other things, plaintiff's claim not only was
meritless but was an improper attempt to relitigate a prior state-court action, and plaintiff responded to
motions to dismiss by adding as a defendant the attorney who filed them.
Mr. Kimberlin's conduct in this matter appears to be awash in bad faith, to a far greater extent
than the conduct in Godwin. Leaving aside the plain lack of substantive merit in his case his RICO
theory contains at least a half-dozen fatal flaws and also leaving aside his apparent propensity to tell
the court he has served papers on various parties, when he has not, his singular and outrageous actions
regarding Twitchy warrant that relief. Mr. Kimberlin not only altered the FAC but forged a summons,
to convince Twitchy it was a defendant and that this Court was summoning it to Maryland to answer,
when in fact the Clerk appears to have specifically refused to do that. He then used the U.S. Postal
Service to deliver it. Indeed, it appears the Legislative branch is the only one of the three that Mr.
Kimberlin has yet to misuse or abuse in this litigation. If ever there were a lawsuit involving conduct,
and a pro se plaintiff, justifying an award of fees, it is this one.

44

CONCLUSION/RELIEF REQUESTED
For the foregoing reasons, defendant Michelle Malkin and non-party Twitchy ask this Court to
enter an order dismissing the First Amended Complaint with prejudice, and awarding costs, including
attorney fees, and such additional relief as the Court deems just.
Respectfully submitted,
/s/ Michael F. Smith

Michael F. Smith
The Smith Appellate Law Firm
1717 Pennsylvania Avenue N.W.
Suite 1025
Washington, D.C. 20006
(202) 454-2860
Bar No. 29941

Date: January 27, 2014

UNITED STATES DISTRICT COURT
GREENBELT DIVISION
BRETT KIMBERLIN,
Plaintiff,'
v.
NATIONAL BLOGGERS CLUB,
ALI AKBAR,.
PATRICKFRBY"
ERICKERICKSON,
MICHELLE. MALKIN,
GLENN BECK,
AARON WALl(ER.
WILLIAM.HOGE,
LEE STRANAHAN,
ROBERT STACY MCCAIN,
J,AMES O'KEEFE.
MANDYNAGY,
BREITBART.COM,
DB CAPITOL STRATEGIES
THEFRANKLlN CENTER.
SIMON&sCHUSTER INC.,
KIMrftRLINUNMASIG:D
MERCURYRADJO ARTS
THEBLAZE
ACE OF SPADES
REDSTATE
No. PWG 13 3059
FJ.RSTAMENDED COMPLAINTFQRDAMAGES
VIOLATION OF CIVIL RIGHTS, RICO ANDSTATE LAWTORTS
INTRODUCTION
1. Plaintiff Brett Kimberlin ("Kimberlin") hereby brings this complaint to
recover damages inflicted by e f e n d a n ~ defined below, for engaging in a criminal
racketeering enterprise that violatedhis civil rights and whichincludes widespread
mail fraud, wire fraud, money laundering, intimidation, assault, extortion, threat of
extortion. obstruction ofjustice, and gangactivity for the purpose of harming
1
FORTHE DISTRICT OF MARYLAND
GREENBELT DNISION
BRETTKIMBERLIN,
Plaintift
v.
NATIONALBLOGGERS CLUB, et aL,
Defendants
*
*
*
*
*
Civil Action
PWG 13..:3059
* * *
III
* * *
DECLARATION OFJULIEISRAELSON
1. My name is Julie Israelson, and I make these statements based upon my own
persqna1 knowledge. I amover 18-years of age, and if called to do so, am competent to testify
that the contents of this Declaration are accurate and true.
2. I am elIlployedas an Executive Assistant in the Legal Department of Salem
Communications Corporation in Camarillo, California, and in that. capacity I am familiar with
the documents that were received via certified U.S. Mail at our office on January 6, 2014,
addressed to "Salem Communications Legal Dept."
3. The document attached at Tab 1 isa true and correct copy of the Summons in a
Cfyil Action addressed tha;t wascontained.in thatenvelope. The document attached at Tab 2 is a
true f;lDd correct copy of the First Amended Complaint for Damages that was contained in the
envelope delivered to Us. The document attached at Tab 3 isa true and correct copy of the
December 30, 2013 Letter Order ofthis Court that was contained in that envelope.
4. The document attached at Tab 4 is a true and correct copy of a letter from Brett
Kimberlin, addressed "Dear Defendant in Kimberlin v. National Bloggers Club," that was
Case 8:13-cv-03059-PWG Document 41-3 Filed 01127/14 Page 2 of 63
contained in that envelope. The documents attached at Tab 5 are true and correct copies of the
fronfand back sides of the envelope in which these materials arrived.
I e ~ u n e r penalty of perjury under the laws of the United States of Ametica that the
foregoing is true andconect.
ExecutedthiS Otf day ofJanuary at Camarillo, California.
2
Tab 1
Case 8:13-cv-03059-PWG Document 4 Rled 11/12/13 Page 14 of 18
U IJTED STATES DISTRICT COURT
for lht
DislllCl of laryluod G
Brett Kimberlin
\ ,
Nalional Bloggefs Club, et at
------_.,. "-. _._------
)
)
)
)
I
)
)
Sl:,\'Ii\lOi'\S I .-\ C/VILACTION
To: (f),:kr.dilJII:rl1.vlI,/IIl'/w"'r". <j TWitchy clo
Salem Communications
4880 Santa Rosa Rd
Camarillo"CA 93012
..\ lawsuit h:Js been Ii/cd DSIIlSI yau.
Withan 21 da,'s after :ll'rvlce or 11m 511mmOllS 011 YOU (001 'oun III!! Ihe day (Ill I'C'tl\"ed II) - \If 6Ll d(l\'S If YO!.:
:IrC thu linited Srntc$ :I United SIiIlCS llf <Ill Of the United Shltes in Fed' [1. ,
P. I) (a)(2) ur (3) -- )'ClUIllUSI serye on the plaintiff an umwcr 10 Ihe all:Jchcd complaint or a motion under Rule 1 (If
tne fcdcral/{II]cs of Civil 1lle answer 01' 1110lioll nlUSI be SCf\ cd on lhe pluilllil1' or pluinllif SlI11llnJC)'.
whose nome ;\dllrcss are Breit KImberlin
I I
BetheSda. Mb 20817
If yOtl fail 10 respond. Jlldgml'Ol hy default \\ III he clllcred ng;ull.1 y)1I fl1r Ihe r lidJemonded mthe
YOll also IIlUS\ file llnswcr or 1n00ioll wilh lht: cuun.
(J./:'NJ( OF ('UUNT
Date: 1.1/12/2013
Tab 2
Case 8:13-cv-03059-PWG Document 41-3 Filed 01/27/14 Page 6 of 63 .
POR THB DISTRICT OF MARYLAND
GREENBBLT DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
NATIONAL SLOGGBRSCLUB,
ALIAKBAR,
PATRICK FREY,
BRICKBRICKSON,
MICHELLE
GLENN BECK,
AARON WALKER,
WILLIAM HOGB,
LEE,SrRANAHAN,
ROBERTSTACY MCCAIN,
JAMBSO'KBBFE,
MANDY NAGY,

DB CAPITOLSTRATEGIES,
TWITCHY,
rHE FRANKLINCBNTBR,
SlMON&SCHUSTBR INC.,
KlMBERLINUNMASKED,
MBRCURYRADIO ARTS,
THEBLAZB,
ACEOF SPADES,
REDSTATH.
No.PWG1330S9.
FIRSTAMBNDEDCOMPLAINT FORDAMAGES'
VIOLATIONOFCMLRIGHTS, RICOANDSTATELAWTORTS
INTRODUCQON
1. Plaintiff BrettKimberlln tKimberlfn") herebybrings this complaint to
recover damages Intltcted byDefendants, defined for engagingina criminal
racketeeringenterprJse violated his civilrights and'whichJncludeswidespread
fraud, wire fraud"money laundering, intfmidatJpn, assault, extortion, threat of
extOrtion, obstruction ofjustice, and gangactiviwfor the purpose ofltarming
1
Plaintiffand deprivinghimafhis civil rights. Specfflcally,the Defendants (1)
created false and defamatory narratives stating that Plaintiffengaged.in, ordered,
directed and/orfacUitated'the criminal swattingofIndividuals, (2) provided false
informationto media outlets, politicians and lawenforcement:>ftlclals accusing
PlaintiffofJnvolvement insaid swattings, (3) repeatedlypublished defamatory
$tatementsthat'Plaintiffcommitted SWClttings, and then (4). enriched themselves by
fraudulently raisingQ!DS Qf thousands ofdollars and increasingtraflic on their
websites based on those false narratives. Some oftbeDefendants conspiredto
and/or did assault Plafntiffandthen used himagainst
exercisinghis, right to redress through access to the courts. The Defendants used
gangactlviwtotbreaten, harass and intimidate others who rejected their false
narratives about Plaintiffi includingJournalists, judges and Mitryland State's
Attorneys. These torts were Intentional and caused PJaintiffphysical harmand
emotional iiistress.
2. Swattingfs tbecaJUngof,tbe police using afa!sifted phone number and telling
the, ponce that a major crime occurred at the address associated with that address in
orderto cause aJarge police-response.
3. Defendants made the false, slanderous and defamatory
statements about Plaintiffs involvement in swattingmonth after month'for more
than a year, thepubJlcation oftbousands ofarticles, blogposts, Twitter
tweets and-radio and. b!levisionbroadcasts attributingthe swattlngs to Plaintiff.
4. None ofthe Defendants ever contacted Plalntfflfor comment or response to
these,false, slanderous and IibelClus statements priorto or afterthefr publication.
2
S. Plaintiffasserts claims against Defendants arisingfrom violations of (1) the
RacketeeringIntluencedand'Corrupt OrganizationsAct (RICO), 18'USC 1962(c); (2)
conspiracyunder RICO, 18 USC 1962(d); (3) the Civil Rights Act, 42 USC1983, (4)
. conspiracyunderthe.Ku Klux Klan Act, 42 USC 1985, (6) defamation: (7)
fraud, (8) invasion ofprJvacy, and (9) Infliction ofemotionaldfstress.
JURISDICTIONANDVENUE
6. This Court has jurisdiction over this action,putSuant to 28 USC 1331 (federal
question), and18 USC 1964(c) (RICO).
7. ThiSCourt has supplemenbll jUrisdiction over the causes ofaction based on
state lawpursuant to 28,USC 1361(a), as the state lawclaims arISe out ofthe same
nucleus ofoperative facts which support the federal claims.
8. Venue is proper in the DIstrict of Maryland under 18 USC 1965and 28 usc
1391, in that Plafntiffresfdes in manyofthe actions ofDefendants took
Maryland, the injUry occurredin Maryland, and a substantial portion ofthe
communications, transactions, events or omissions occurred in
PARTIES
9. PIaintitrKimberlinis the Director ofJusticeTbrough Music, a Maryland based
501(c)(3) non-PfQfitthatqses music to Inspireand.educateyoungpeople to get
involvedwith civic participation. Plaintiffhas held that position for ten years and
works. inMontgomeryCounqr Maryland.
10.. At all relevant times,Defendants are a "person" withinthe meaningof
that termas defined byRICO, 18USC
19. DefendantAlIAkbar resides atl Lynchburg,
VlrgInfa 24502, and is the selfproclafmedhead ofthe Defendant NationalBloQlrs
Club,.whkh Is located'atl Ft. Worth; Texas 76137.
20. Defendant Glenn Beckis a tadlo andtelevision personaUt:Ywho
resldes:.,-I 9th Floor}lewYQrk, New,York-JOOZO.
21. Michelle Mal".s a blogerand FOX.News commentator who resides
atl l. Colorado Sprlnp, Colorado80906.
22. Defendant ErIckBrlcksonIsa blogerandtelevlslon commentator
whoresidesatl Macon, Georgia 31210.
23. DefendantAce OfSpades Isa blogcreated by MichelleDandIs
located atl ISantaClara, CaUfomta 9SOSL
24. Defendant PatrickPreyIs a.bloger who'resides atl _
ralos Verdes, CaUfomla'9027S. He Is employed as anAssistant
State'sAttorneyfor Los $lgeles.
25. Defendant TwitchyIs a blogglng platformowned oropetated by
Defendant-Michelle Malldn through Tw;Itehy LLC.to-promote stories createdbyher
andother members ofTwitchy. It Is headquarterecl'atli--- ......I
___I, ColoradoSprings, COlorado 80906.
26. Defendant TheGlenn BeckProgram!Mercuty RadioArts, Is a media
to promote DefendantGlenn Beckand Islocated1'-- _
______1NewYork, NewYork10020.
5
11. At aU relevant times, Defendants wereenpged in Interstate
colilDien:e or in the production ofgoods orservices for sale or use in Interstate
commerce.
12. DefendantJames O'Keefe resides at I
Mamaroneclr. NewYork10543who portrays a JOlimalist" and
book.author..He.recendypublished a book entitled, "Breakthrough: OurGuerilla
Expose Fraud and Save Democ:i'i.cy," pubUshed by DefendantsSimon "&
Sh..-r, and released through its Threshold Dlvlslon.Stmon&Shuster has Its
corporate atl NewYork; NewYork
10020.
13. Defendant,Aaron Walker Is an unemployed Who resides at
"'-- 1, ManassaS, Vlrglnla.20109.
14. Defendant Lee Stranahan Is a bloggerWhoI'ISIdes at ..... 1 ----'
___LDaU8:S, Texu 75240.
15. Mandy Nagyis a bl<Jgerwho at 1__----1
NewJersey01921.
16. Both DefendantsStranihatt and Nag, write for Defendailt
a media group locatedat I I, Los Angeles,
CaJU'Qmfa 90049.
17. Defendant Robert StacyMcCain Is a who resides at(l-.-----J
____ Hagentown, 21140.
18. Defendant aoge Is a blosJerwho resides at20 RldgeRoad,
WestmInSter, Maryland 21157.
4
30.
21. Defendant The Blaze Inc, Is a media companyoWned by Defendant
Glenn',Beck and. created to promote Defendant Glenn Beckand hfs,worldVfew, and Is
locatedatl NewYork, Nework 10036.
28. Defendant RedState Isa media companyowned/or dlrected,by
ErIckson and Is locatedatl
Washington, DC, 20001.
29. Defendant DB CapItol Strateglesfs alawfirm.located.atl__....J
.1 1Alexandria, Virginia 22314, and Is headed byAtmmeyDan Backer.
'The FranklinCenter for GoVernment and PubUc Jnt8grltyIs a non-
profttorpiiZationlocatedat I'-- A1exandrJa, Virginia
22314, .wItha missionoffemtingout corruption.
31. DefendalitKirnberJlnUn..-ked Is an,anonymous blogger whose
mfsslonisb).sniear Plaintiff.
STATBMBNT OF FACTS
3Z.ln September 2010, AndrewBreitbart, the former ownerofBrettbart.com,
a mectia company, contacted Defendants udMandyNagyand
others, aDd conspired with themto target Plaintifffor a SIJl88r campaign.
Mr. Breitbart wasdoselyassocfated with pefendantFreyand chose, him
because ofhfs as a Los Angeles Assistant DfstrIctAttomeyand as
the owner, ofthe blo&Patterlco's Pontiftcatlons.
33. on or about October 11, 20120, DefendanfNagythen wrote an article
smearing Plalntifftbat'appearedon Breltbartcom. Defendant Jlrey
I
6
followed that article wjth a similar article on his Patterfco'sPontitlcation's
blog.
34. On October 13, 2010, Plaintiffsueda blogger named SetbAllen for
defamation in:the Circuit Court for MontgoIDery'CoUDtMaryland. On
November 16,2011, the Circuit Court enteredJudgment fn Plafntitf$ favor,
and issued aninjuilctlon agajnstMr. Allen.
35.ln2011, Defendant Walker was co-hosting D,efendant Prey's blogusing the
name, Aaron Worthing, a'supposed attorney from Manassas, Virginia.
Defenmmt FreyslipervlsedDefendant Walker In that capacft;y.
36. On or about August 17, 2011, Seth Allensent an email toAndrewBreitbart,
. and Defendants Walker, Frey n ~ g y tellingthemthat he was planningto
cOllle to Maryland and "murder
u
Plaintiff. Defendant Frey, an Assistant
District Attomey, did not contact Plaintiffor lawenforcement oftlciaJs to
report the murder threat Defendant Nagy did contact the authorities.
37. In December 2011, Defendant Walker, usingbls pseudonymAaron
Worthing, contacted SethAllen and offered pro bonoto tUe post;-judgment
motioDs in Maryland to overtumthe judgment enteredagainst Mr. Allen.
Defendant Walker, stili usingthe pseudonym, then prepared'sndfiled
numerous pleadlngs for Mr. Allen attacking Plaintifland the judge who
issued the judgment.
38. Defendants Walker, Nagy, and FreyconsultedWith olle another on those
. .
legal.pleadings prior W'andalter their fiUfig. Both Defendants Frey and
7
Nagy provided data and assistance to Defendant Wallcer with regard to

39. On or about December 31, 2011, Plaintiffdiscovered that ItAaron Worthing"
was not a realattorney but that Aaron Worthingwas actuaJlyDefendant
Aaron Walker, an attorney licensed in Virginia.
40. Plaintiffalso discol/ered that AaronWorthingwas the publisher ofa.blog
dedicatedto attacking, smearing, mockingand Muslim faith
and the Prophet Mohammed. That blogwas called "Everyone Draw
Mohammed," and Itsollclted vile, pornographic andinsulting depictions of
the Prophet from people all over the world. In December 2011, Defendant
Walker had published more than 800insultingdepi<:tions ofilie Prophet
41. On at-aboutJanuary5,2012, Plaintiff, bymotion, aclYised the Montgomery
Count;y Circuit Court judge in the Seth Allen case that the
attorneyassisting Mr. Allen was not Aaron Worthingbut rather wasAaron
Walker.
42. OnJanuary9, 2012, at a hearingona Motlonfol' Contemptagafnst Mr.
Allen"Defendant Walker appeared uninvited and interrupted the
proceedingsfrom the viewingarea. He demanded that theJudge seal the
proceedings becflUse Plaintiffbad Identified himas Aaron Walker, and
everyone wouldlmowthat he was the publisher ofthe MusUmhate blog.
43. After the. healingwas concluded, Defendant Walker followed Plaintltrout of
the courtroomin MontgomeryCountyMaryland, assaulted himand took
,his iPad from him. Courthouse securltyresponded, retrieved the iPadand
8
-urged Plaintiffto seekmedical assistance. Petltioner.wenttothe
Emergency Roomat Suburban HospltalinBethesda, Maryland, where he
was evaluatect treated and given medicJnesfor hfsphysical injuries,
includingcontusion to the eye, possible concussioD
1
andback,pain. The
assault was inretaliatfopfor Plaintiff his right to redress-and
access to the courts"and It was Jneant to intimidate him.
44. On'anuary 12, 2013, Defendant Walker wasterminated from his
employment as an attorneyfor Professional Health Care Resources after
theemployer qfscoveredtbat he was the pUblfsherofthe Muslim hate blog,
that he was pubUshingtheblogduringworkhours, and that-he was
incompetent Outside counsel for the companynotified Defendant Walker
In writingthese reasons for. his.termination.
bt1;pi//www.scdbd.com/docf116869717lLettcrs.concerning-Aamn-
Walket=s-reaJ..reasQns-for-helng-t.erminated
45. JnJanuary2012,.Defendants Walker, Frey, and Nagy, in concert, concocted
a false narrative that Plaintiff (1) caUsed Defendant Walker's job
tenninatlon, (2) was not assaulted, and (3)' falsified his hospital records.
46. In Pebruary2012
1
AndrewBrelbart told.Defendant Stranahanand other
Defendants that theyshouldtarget Plaintiffat all costs. Defendant
Stranahan. stated thathe tookthls as an orderfromAndrewBreitbart to put
all available resources into this. Defendant Stranahan wrote: "This would
havebeen a bigdeal: puttingreal Journalistic resoUrces and a huge
9
platforminto the Kimberlin story.leswhatAndrewwanted."
https;l/twitter.com!Stt;anaban/stituses/3819SS531889704960
47. In Februaryand March 2012, Defendants Walker, Fr,ey, Nagy, Akbar and
Stranahan, in concert, planned ways to push their falsenarratlve into the
media in order to (1) demonize Plaintiff, (2) create a.witch hunt, (3) cause
maximum-harmto Plaintiff;-(4)' portray-DefendantWalkerasavictim, and
(S}ralse significant funds frompeople who beHevedthe false narrative.
DefendantWalkermade manytrips to Maryland:fn.ftIltherance ofthat
conspiracy,
48. In February2012, Defendant Akbar advised Defendants Walker, Frey,
Nagy, Stranahan, and otltersthat he was launchinganewentity called the
National Bloggers ClubtobrJngtogetherRepublicanbloggers to
collectively their messagingabout specific Issues, and target
specific Individuals. Defendant Akbar later stated that he can order
bloggers in the National Bloggers Club to target people or nottarget people.
DefendantAkbarhasstatedthat he is ina supervisoryposition over the
other bloggersin the Club. DefendantAkbar has been to Maryland several
times In furtherance ofthe conspiracy.
49. DefendantsAkbar, Walker, Frey, Stranahan, Nagyand othersdecidedthat
.Plaintlft'wouldbe the first smear target afthe National Bloggers They
decided to have an "Everyone BlogAbout BrettKimberJln Daf' on May 25,
2012 where:scores ofbloggerswould write smeCir stories about Plaintiff,
post themonline, and tweet about them on Twitter. Se\Teraloftltose
10
bloggers are from Maryland, and all theblog posts about Plaintiffwere
viewed onthe Internet in Maryland.
50. In May andJune 2012, tbeNational Bloggers Clubbloggers generated
hundreds ofposts and tens ofthousands: oftweets smearing Plaintiff.
DuringthattimeandcontinuJnguntil the present, DefendantAkbar
soliciteddonations on his and other websltes for the Defendant
Bloggers Club, and falselytolddonors that their donations were tax
deductible and that National Blaggers Club was a SOl(c)(3) organization.
bttps; ((wwwJsueWB8J'Oup,comlwp-contentluploadsI2013/01/NBC-Peb-
9-2Q1-2-Le_r,pdf Defendant National Bloggers Club raised tens of
thousands ofdollars based on those fraudulent representations. Even after
people asked for proofthat Defendant National Siaggers Club was granted
SOl(c)(Sjstatus, and DefendantAkbfJr failed to providethat proof,
Defendants continued to solicit donationsfor Defendant National Bloggers
Club. As ofOetober 17, 2013, the National Bloggers Club continues to raise
moneyona donate page statingfalsely: "National Bloggers Club, Inc. isa
SOl(c)(3) -- status pending"
_:/lsecure.plxyx,gom/donatetc97AfwYc/Bememberlng-BreJtbartl
51. The Defendants National Blaggers Club and Ali Akbar solicited donations
from citizens ofMaryland.
52. As a,result of,these smear blogsandartfcles, Plaintitt wbfJejn Maryland,
received many threats ofinjuryand deathby read and believed
the false narratives. These were received byemail, pboneancl blogposts.
11
Several readers called Plaintitf,.his family, his neighbors and his children
threatening. intimidatingand smearingPlaintiff. Several other readers
came to Plaintiffs'home in Maryland and. tookphotographs,afthe home
and ofhimand his child. This caused Plaintiffand his family extreme
emotional distress.
53. Examples ofthese threats are:
I'll. bebringlngthe strawfor you. It's nownota matter ofif.
Brett Kimberlin, neck brokenby110lbs FemaJeMarine.
Brett Kimberlin is done....... the bunter is the'hunted
We lmowwho you are. We're comingfor you. You will pay.
I &get onmy badside &you'll get
thefull wrath. Not Just from but. (sic) I bavemyown. The extreme
wingofthe TP hasamved. This message is for Mr. K. It would notsllit
the best interests ofall people involvedIn your movement to shut the
F&*Kup &that Includes you. .oo
54.Several ofthe threats that Plaintiffreceived stated that he would be harmed
orkilled ffhe appeared in court in Maryland or cooperated with the pollee
there. Forexample,
If Brett does Dot startto act like agrown up and quit callingthe pollee on
people, like a little punk. There winbe hell to pay_
ArmyOfDavids sent a message" Don'tshowup in court Tuesdayoryou
are dead. Thfsfs your onlywarnins
5S:AspartofDefendant Walker's fraudulentpJan to portrayhimselfas a
victimofPlaintiff; Defendant Walker filed numerous false criminal charges,
Peace. Orders and civil suits against PlaintiffIn 2012 and ,2013,inMalYland.
Each ofthese filings made false claimsandaUegatipDSagalnstPlaintUtand
the Judges and/or the State's Attol'l1eyin MontgomeryCounty Maryland,
PrlnceWOUamCountyVfrgh\fa, and the United States Distrlet Court in
12
Greenbelt, Maryland. rejected each. Despite these rejections, Defendants
continued to repeat thelX: false narratives as c.ol1coctedbyDefendants
Walker, Frey, Nagy, Stranahan and others.
56. Defendants conspired to Intimidate StateAttorneys in Montgomeryand
Howard CountyMaryland, and Judge Richard Jordan andjUdgeCornelius
.
Vaugheyin MontgomeryCollDtyafter ther rejected Defendants' false
SpecificCiUy, Defendant Walker defended Seth ADen's online
attacks ofJudge Jordan, and then Defendant Walker, usingthe. pseudonym
Mron Worthing, 'filed pleadings for Mr. Allen defendingthose attacks. He
did thisafter SethAUen sent himan email sayingthat he might come to
Maryland to murder Plaintiff. Defendants Walker, Hage, Preyand
Stranahan condemnedjudge Vaugbey online which resulted In the judge
beingtargeted by having his home phone number and address posted
online, causing the head ofcourthouse securityto provide special security
for hbn. Defendants Walker and their followers to contact
Montgomery CountyStates AttorneyJohn McCarthyand demand that he
arrest and prosecute Plaintiffbased on their false narratives. In March
2013, .DefendantsHoge,Walker, McCain and Stranahan launched "Everyone
BlogAbout Howard.County Attorney Day," which
resulted In threats byphone and email tothe State's Attorney over a period
weeks. http;lltbeotbermccain.com/2013104/081e-maJl-from..a..
formeNQaryJand-resident-to.howard..county-md-states-attome)!1
13
htq;/lalletgic2bull.bIQgpotcom/2013/03leyeryone-blgg..about-h
owa
rd-
couDQr-md.bbnl
htt;p:.(/hQgeM\sb,comI2013103/2S/eyeryoue-blgg-about-tbe-hoWard-
county-s1:Qt:es:attomey-dft)f;1
51. Atsome point between December 2011 and May 2012, DefendantsWalker,
Frey and others concluded that they hadto create a more sinister false
narrative against Plaintiffthat would result in criminal and Congressional
investigatlons.Therefore,theydecided to verypupUclyfalSely accuse
Plaintiffoftlswattingconservatlvebloggersin order to silencethem."
58. Defendant Frey'was allegedly swattedon}une30, 2011 at his home in
California. At the time, he told the.policethat he thought It was because he
was writingabout Congressman AnthonyWeiner. However, in 2012,
Defendant Frey, in concert with others, Including Defendants Walker, Nagy
and Stranahan, began publiclyimplying statlngthat Plaintiffhad him
swatted. Some ofthesestatements were iii writingand others were oral.
For example, bttpillallergic2bulI,b1oppotcom/2012105/brea1dng-
anotber-eritlc-of:econytcted.htmJ.
59. Defendants quicklyreal1zedthat their allegations ofswatti"gagainst Frey
so theyconcocted a plan to get the
swattingsmear Intotbe mainstreammedia, andthey did that byrecruiting
Defendant BrlckBrickson, who bloggedat the highly trafficked RedState
and was a paid commentator at CNN. On or about May15,2012, Defendant
Bticksollcontacted his local police-and told themthat he was goingto write
14
about Plaintiffon RedState and might be swatted. And, as predicted, on
May 27, 2012, Brickson was swattedand the poUce he bad earUertold to
expect the swattingcame tohfs home in Georgfa.DefendantNagywrote
about the swattingincident for Breltbaltcomand posted the video from
the CNNbroadcast, which were viewedin Maryland.
bttp;!lwwwhrrUtbartcOm/Bfg-Goyernment/2012/06/08lBr1ckP-CNN.
SWATting
60. Defendant ErIckson and manyother Defendants and members ofthe
National BloggersClub wrote extensivelyabout Defendant Erickson's
swattingand falsely blamed Plaintifffor doingit, both directlyand by
impllcation..For example, http;/Iwww;examiner.com/artlcletbloggers
pbserye..dAY..of-stJence..
ht\P;/lwww.redstate.comlerlck/2012lOSl22/one-rnetdc-op-impact-
swattlng'
http; Ilwwwredstate.com!erlck!2Q12/QS/25Idally-koss..neaJ-raubauser-

61. Defendant HrlckSon appeared on CNN Television onJune 8,2012 and
imputed that Plaintiffwas responsible for the swattingthrough "his fan
Brlckson even pushed backagainst the reporter's protests
that there Was no evidence of Plalntift's lnvolvement,sayingthat "the same
fact pattern"applied where the bloggerswrote about Plaintiffand within
weeks they areswatted.
15
62. OnJune 25, 2012, Defendant Walker was allegedlyswatted at his home in
Virginia. He and other Defendants stated pubJiclyin print and on radio that
Plaintiffwas responsible for theswatting. Defendant Walker appeared on
Huff Post Live,lmputlngthat Plaintiffswatted hint
htl;p:(Dive,buffingtonpQstcomlxlsegment/swattjqg-
Japd/S16ficb7Sfe34442d7QQQ0390. And be posted on his Twitter account.
NAs for TSG and stack, theywere at least the tools ofKtmberllnand
Rauhauser, who had a hand in SWATtInghim, too.
n
bttps: Iltwltter.comIAatonWortbing!status/34249972Z444688896
63, On or about May 25, 2012, Defendant Glenn Beckprovideda platformon
his radio/television broadcast for Defendants Walker ~ Freyto accuse
Plaintiffofswatting. Specifically, Defendant Beckallowed Defendants
Walker and Freyto appear via audio on hisradlo/televislon programand
Impute, implyand state that Plalntffftargeted Defendant Frey with
s w ~ n g n caused Defendant Walker to be fired. Defendant Freystated
on the programthat he is a "Deput DistrictAttomey.#These programs
were viewed tn Maryland and across the globe. DefendantFreyspeclfically
stated that the swatting"happenedto another guy writingabout the same
sooryt and Defendant Freystated that Plaintiff"could have gotten me
lclUed.
tI
http;(/www,YQuWbe,comlwatch?v=o8FOgXJBbUE
64-. On May 25, 2012, Defendant The Blaze published an article entitled, ClDo
YoU KnowWhat 'Swatting Is? Victims TeUBeckHowTheyWere Targeted
ByTerrorist Brett Kimberlin/' and sald,title andartlcle imputed that
16
Plaintiffswatted. conservative bJoggers. This was viewed In Maryland and
published on the Internet
http;l/www.thebJaze.com!stories12012IOS125/do-YQu-know-wbat..
swatting-ls=ylctims-tell-beck-how-tb@y-were-tatgete<!-by.terrorfsb.brett-
kimberlinI
.
65. ,On' May25,2012, Defendant Glenn Beckpublished an article on his
GlennBeck.comsite titled "Glenn Talks To Bloggers About Brett Kimberlin
Terrorlsm
l
' in which hetmputesthat Plaintiffswatted Defendant Frey. This
was viewed globallyonthe Internet
btt;p;//www.glennbeck.com/2012/0S/25/g1eoo-taJks-to:b1oggers-about-
brett-kimberlin-terrorlsml
66. On JUDe 8, 2012, DefendantAce ofSpades published "National Dayof
Blogger Silence" to focus attention on the false narrative that Platntiffwas
responsJbleforswattings. In the article, DefendantAce ofSpades imputed
thatPlafntiffwas Involved wltbtbe "crime" ofswatting: "Theyare l1terally
goingtoget someone. killed. That Is their endgame here.
u
This was viewed
in Maryland. http;/lace,mq,nu/arcblyes1329849.php
67. OnJune 25,2012, DefendantStranahan wroteanartfclein Breitbartcom,
implyingthat Plaintiffwas responsible for the swattingofAaron Walker.
This was available to citizens of Maryland. btJ;p;/twWW:brettbartcom/Big-
Goyemment/2012106125IBlgggc[=Aamn-Walker-Swatted
~ On.june 25,2012, Defendant Preywrote an article onPatterico's
PontifitatiQDSimplyingthat Plalntfffwas responsible for the swattingof
11
Defendant Walkeri and told other bloggersto call the police Ifthey
plannedto write about PJaintiffbecause they could be swiltted. All of
Defendant Freys blog posts are viewable In Maryland.
http;IlpatterJco,com/2012106/2Slaaron-walker:swattedl
69. On May 27,2012, Defendant ErickBrlcksonpublished an article on
Defendant RedState, wbichwas viewed in Maryland, implyingthat Plailitiff
was somehowinvolved with swattinghim:
Last weekwe spent a lot oftime writingabout Brett Kimberlin and the
incident involvingblogger Patterico where someonespoofed bis phone
number and told 911 he had shot his wife.
Tonight, my family was sittingaround the kitchentable eatingdinner when
sheriffs deputies pulled up in the
Someone called 911 from myaddress claimingthere had been an
accidental shooting.
Jtwasn't nearlythe trauma that Pattericosuffered, butlguess the-Erickson
household is on somebodys radar.
Luckilyit was two sheriffs deputies who knewme and 1had already, last
week, advised the Sheriffs Departlneht to be-on the-lookout for something
likethis. http;/,Imyw,redstate.com/ericJc/2012/0SJ27/swattJng-tbe-
erlcksgns.[
70. On June 25,2012, Defendant Twitchy published an article, titled, "Aaron
Walker SWatted,'" which compiled dozens oftweets that togetJter impute
that Plaintiffcommitted the swatting. Twitchy posts are viewable in,
Maryland. http;'/twitc1]y.com/2012/Q6/2S/aaron..walker-swat-ted/
11. Defendants Erickson, Walker, Freyand others contacted Members ofthe
House and Senate, tellingthemthat Plaintitfwas responsiblefor the
swattingand urglng'themto demand a crimfnalfnvestlgation by the
Department ofJustice. As a result senator SaxbyChamblt$s and 87 House
Members signed letters'urgingthe DepartmentofIustice to fnvestigateand
18
prosecute the person who swatted "conservativebJoggers.
1l
These letters
in conjunction with the false statements by Defendants Imputed that
PJaintitfwas involved inthe swattings. For example. Defendant Robert
StacyMcCain reportedabout the'letters and urged mainstreamreporters to
"peel... that bigonion" around Plaintiff's connections to the swattlngs.
http://tbeothermccain,cmn/2012/06111/f1orida-rep-s8ndy-adams-leads..
8S.boqse..repuhUcans-in'!'swattingletterl
72. Two FBI agents came to Plafntitl's home,ln Maryland on or about July 1,
2012, and interviewed Plaintiffabout the swattings. On or aboutAugust
20, 2013, another FBI agent interviewed Plaintiffswife after Defendant
Walker contacted the agent and told hbn to surprise her at alocation In
Maryland bOWD to Defendant Walker.
73. In 2012 and 2013, Defendant Walker repeatedlycontacted state and
federal lawenforcement officials andfalsely toldtbemthat Plaintiff
committed the swattings and demanded that they.arrest'hlm.
14. Defendant Walker attemptedto usediscoveryin his frivolous Virginia civil
lawsuit todemCind documentsfromPlalntiffto bolster his false swatting
allegations. The judge in the case denied those discoveryrequests. Plaintiff
was required to travel from Maryland to Virginia to defend against that
malicfoussult.
75. Defendattt Walker filed,8 federal lawsuit In the District ofMaryland asking
the federal court to probtbit Plaintifffromseekingredress in State of
Maryland courts based on the false narrative thatPlafntlffengaged in
I
19
crlndnaland unethical conduct. Defendant Walker came to Maryland' from
Virginia to prosecute that malidous suit.
16. Defendants Walker and DB CapftolStrategies attempted to use Defendant
Walker's frivolous federal lawsuit to extort asettlementthatwould require
thetenmnation ofPlaintiff's employment at the non..proflt, and the
.disclosure ofproteeted Information from his employer. Attorney Dan
Backer wrote.an email to that eflectandlt was received in Maryland.
77. Defendant DB CapitolStrategies posted on itswepsite that It was suing
Plaintiffin federal court to defend bIoggers from"swatting,"imputingthat
Plalntlffwas responsible for those swattlngs.
bttpillbloggersdefenseteam,com/7abQut Defendant DB Capitol Strategies
wrote on its blogthat Plaintiffs "vlctims" were "swatted," Implyingthat
involved with theswattings. "KImberlin 'associates' are
suspected Infar more sinister fornis ofharassment includingthe
SWATting' olanAssistant DAin California."
.http; I lblgggersdefenseteam,com17narratlve.These arestill viewable'in
Maryland.
78. Defendant DBCapitol Strategies raised tens ofthousands ofdollars based
On thlsfaI$e narrativeand is still raisingfunds even though Judge Motz
dismissed its frivolous suit against Plaintiffon November 26. 2012.
79, Defendant Walker's attorneyin the state andfederal lawsuits, Dan Backer,
who.fs the director of DB Capitol Strategies, reNsed Plaintitrsrepeated
20
requests to remove the false and defamatoryinformation fromtheDB
Capitol website.
80. Defendant Michelle,Malkin used her blogand Twitter compiler, Twitchy, to
repeatedlY-state that Plaintiffcommittedtheswattlngs. For example, on
May 30, 2012,.she wrote a blog post titled Fox News Covers
Brett Khnberlin/PatterlcoSwattings/'
hUp;!lmichellemaIJdn,com/2012/0S/30/breaktbrough-fox-covers-brett-
klmberJin-patterico-swattjng..bJoggers-continue=preuing-tbe-storx'
81. OnApril 8, 2013, Defendant Michelle Mandn publishedan article on her
blogtitled, flMore Celebrities Swatted, Meanwhile Anti-Brett Kimberlin
BloggersStill Under Flrel'btl;p:!lmichel1emalkfn,com/2Q13/04IOBlmore-
"lebrltlesioswat-ted-meanwhile-anti-brett-kimberlln-h)ggprs-still..under.
firJ.lDefendantMalldn,imputedthat Plaintift',was for the
swattingQfDefendants Freyand Walker. The firstcommenter to the article
silid: "Brett Kimberlin needs to wakeup with a horse's head in his bed."
82. FreyIs an Assistant DistrictAttorney in.Los Angeles, california
by dayarid bynight he blogs as Patterico. Defendant Frey has repeatedly
stated, directlyand bylmplication,thatPlaintiffswatted him. For example,
on May25,2012, Defendant Frey headlinedanarticle about swatting With
Plaintiffs name prominentlydisplayedsaid inthe articlethat he could have
beenkilled, and imputed that Plaintiffwas responsible for the swatting.
.httpjllpatb!rlco.coml2012/Q5.J25/GQDvjcted-bomber-brett-ldmberJin-
neal.raubauser:ron.btmaert-and-their.campaign-gf-pgliticaJ-teJTQrism'
21
83. Defendants Frey, Walker, Stranahan, Namr, McCain and others have used
Defendant Frey's job description - "Assistant. DistrictAttorney" - to give
credfbDltytotheirstatementssmearingPlailltiffas a swatter. ThisJob
description has been published in articles,in tweets, in emails, and in
letters. For example,
Defendant Freywrote "[amthat L,A. CountyProsecutor."
bttpjllpalterico,mmI2012/OS/2S!cQylct;ed-bQJDber-hrett-
kfmberJJn-neaJ-raubauser-rgp-brynaert-and..tbeir=campaign..of-
"Another blogger who was SWAT-ted, Patrick Frey, a Los Angeles
assistant di.strict attorney, went throughthe terrifYingexperience in
Julyof2011"
http; Ilwww.wasbfngtontimes.com/blog/watercooJer/2012ljun/1Q
lpi,ket-fJa-congresswoman-Jeads..eflort.demand1ng-sw/
"In October of2010, I was contacted byJ. PatrickFrey, a.ka.
"Patteneo" of Patterico's Pontificatlons. Patrickis a DeputyDistrict
Attorneyin LosAngelesfn the hardcoregangunit."
.http://a1J@[gic2bull.bJgppotcom/201-2IOS/how-bretVkimberlin-
trfed-tp.frame-me 17.html
84. Defendant Freyrelies on his job as Assistant District Attorneyto maintain a
leadership and.supervlsoryposition in the conservatlvttblogginghierarchy
andin the instant racketeeringenterprise. His Qrdersare followed, his
directives arebeeded, his legal analysis is unquestioned, and his statements
arebelleved.
85. Manyofthe Defendants and other non-defendant bloggersand reporters
believed that Plaintiffwas involved with the swattings because of
Defendant Frey's positionas Deputy Disbict Attorney. The accusations and
implications by Defendafit Freywere so credible because ofbts position as
a prosecutor, and he capitalized on that position to make sure that no one
questioned that Plaintiffcommitted theswattlngs. He and other
Defendants also used that position to maximize the publicityabout the
swattings, and to mislead the FBland'Congress about the swattings.
23
86. PJaintiffhas repeatedlyinformed the Los Angeles Count;y District
Attorneys Officeaboutthe tortious conduct ofDefendant Freybut his
supervisors have told Plaintiffthat they ha\fe given Defendant Frey
permission to act that wayas. longas hedoes not do it wbilephysically at
the District Attorney's Office.
DefendantFreyacts under color ofthe lawofthe'State ofCalifomfa, which
glvenhimfull authorityand permission to smear Plaintift falsely
aceusePlaintiffofswatting, and defame Plaintift:
88. Defendant,Frey,as'an official of the State ofCalffornia, has used his position
tOintimldate,harass, stalk, threaten and harm Plaintitt; directlyand
through,otbers. Defendant Freymasquerades as a lawabidingstate official
byday, andthen by night he calls on his readers to harass his targets,
inclUdingPlaintift: Allthewblle, Defendant Freyand his employer
maintain,official plausibledenlabilitybyassertingthat he Is actingalone
and offdut,y, yet he wears thetitle ofAssistant District Attomeyby dayand
bynight and uses it on hisblog, intalkingto media, andto bolster his
stature,credibiUtand standing.
89. Defendant Prey. has statedthat Plaintiffshould be arrested and jailedfor
various reasons. thesestatements come from an Assistant District
.ttomey,tbeycar,rymUc:b greater weight than would such calIs corning
&0111 a regular citizen. Thesestatements,have been viewed in Maryland.
90. Defendant Freysecretlycontacted Barrett Brown and sought his help and
the help oftbeltacker group Anonymous to intimidate Plaintiff: Defendant
24
Frey used hfs posJtionasDeput;y District Attorneyto make that contact and
implied to Mr. Brown that because ofhfs position, he maybe able to
provide a.,q\dd pro quo to help Mr. Brown with his legal 'problems in
exchange for Mr. Brown helping Defendant Frey.
bttp;/lpastebin,com!WGdGScBDMr. Brown refused that request and
posted his chat logs with Defendant Frey.
9'1. Defendant Walker has written ntanyletters to people and officials using
Defendant Frey's job position inorder to enhance the credibilityofhis false
statements against Plaintiff. Defendant Walker has used Defendant Frey-
"Asslstant District Attorney"-asa reference, andurged people to contact
AsSistant DfstrictAttomeyFreyto verify DefendantWalker's false
about Plaintiff. http; llaUergic2bull,blogspotcom12011/12/1-

92.. Defendant Freyusesthe legal training, lega)contacts, and legal resources
he has developed asan Assistant District Attorneyto target Plaintiffwith
smears, false narratives and legal analysis.
93. repeatedlystated that their goalls to have Plaintiff
arrestedandjailed, and destroy his abUitytoraise funds for his non-profit
employer.
94. Defendants' business model is to createfaJse narradves about Plaintifffn
order to raiSe funds for themselves whUe drivingtheir blogs to higher
ranklngs oflntemetsearch engines suchas
25
95. OnJune 26, '2012, DefendantThe Franldin Center published a press release
that was Vlewedin Maryland, and helda webtnar, which stated:
Conl'lcted domestic terrorist Brett Kimberlin and his associates have
repeatedly telTorlzedbloggers and others who hfghlightbis story with over
100frivolous lawsuits and'" SWATtIngattacks.. SWATtingis a dangerous
tactic that involves callfnga pollee department to report a false crime to get
a SWAT teamdispatched to the victim's house. The attacks have included
bloggers Patterico, BrickBric1(son, andas recentlyas last night, Aaron
Worthing. . .
http;llfrankJincenterhq.orgIS833IfrankJin..center:jolns..lee.st:ranahanoit
popMat:aaron..walke....mandy-nagy..and-otbersto-dfScuss-protecijpn..Qf-
tbe-rree-pressJ
96. OnJune 26, 2013, Defendant RobettStacyMcCain published the above
press releaseon his blog.under the headline, "I#TCQT #BrettKfmberlin
##SWAtting Important Byent 9;30 p.m. lITTonightl"
,bttP:/ltbeotbermccaln.com12012/Q6126/tcot-brettklmberllnswattinr-
imll0rtant-eyent-930-p-m-et-tonigbtl Defendant McCain resides in
Maryland andtbfs.post was viewed in Maryland.
97. More 1;I1an 15;000results come up on Google when pairing"Brett Kbnberlin
with Swatting."
9S. DefendantJames published a bookInJune 2013, called
tlBreaktbrough,"Which was published by Defendant Simon &Shuster
thl!Jugh Division. [n that book, Defendant O'Keefe published
the foDowlng:
deserves his own book He's the scarydude who pioneered the
artof'swatting -thatls convincingthe police ofa' domestic Incident severe
enough to trigger a SWAT response at the home ofa political opponent. Of
late, he hasJocused his demonic energyon citizen Journalists." page 250.
That bookwas sold and availablein Maryland.
26
99. On AprJI8,2013, Defendant Michelle. Malldnwrote an article for her blog
implyingthat PlaintiffWas responsible for swattingconservative blaggers:
"Conserv.ativebloggers and activists ralliedbehind the Victims oflert-wing
convicteddomesticterrorist Brett Kimberlln.and hJscabaJ. Ayear later, the
survivors ofthose SWATting attacks. are still fightingfor their securitf and
treespeechrlght&" bt1;pi/lmfcheliemaJlsin,com/2013/0i/OB/more..
celebritfes-sWat-ted-meanwblle-antj..brett-ldmberJ'n-blgggers..stJlJ-under-
11m.l
ThatbJog:post was viewable In Maryland.
On October 1,2013, Defendant KimberlilnUnmasked.stated the
foUowing on the About page ofhis blogwhtcbis stillviewable in Maryland:
"This blogisfor the purpose offurther exposingand highlightingthe sick
padlologiesandactions ofBrett KimberJln and his associates, ..... This blogis
an attempt to document their actions on behalfofthe many people they've
targeted and continue to target online and in person. The most terrifying
methodology-they've usedagalnstthelrfdeological foes isSWATting, which
iswhymany: people are keepingtheir heads down, hopingthat not
mentioningthemwin make themstop,"
http:UkimberUnuumaSked,blogspotcom!pjahouthtml
101. On June 26, 2012, Defendant Robert Stacy McCain, residing in
Maryland, wrote an article on ViralRead tbat.implied that Plaintiffswatted

"This latest attack follows similar tactics usedagainst PatrickFreyand ErIck
. Ericksonafter theybecame Interested In the ongoingKimberlinsaga."
http;llwww.yiraJread.com/201gJ06/26/aamn-walkereOswiltted/
: 102. On June 12, 2012, Defendant Robert StacyMCCain, posted. an article
on his blog that Imputed and stated that Plaintiffcommitted swattings.
OfcQurse, since tbe DOjis led bythecotTUptand raclstEr1c Halder, and the
victims afthe Brett Kimberlin SWATlngare Conservatives and the
perpetrators are Liberal political activists.
27
http;/ltheothermccain.com/201Z/06/06/sen-saxby-cbambUss-reQuests-
dgj..fnvestlgate=swatting/
103. OnJune 8, 2Q12, Defendant Hoge,wboJives In Maryland, wrote a
letter to a Congressman in Maryland andlmputedth,t PlaintJffwas
Involved withswattlngs, that he should be Investigated bythe IlBJ andsent
to prison. Defendant Hage published that letter alongwitb a blogpost
b:tPillhogewasb,com/2012/06/08/national..daY-Qf-blogger:sUencel
104, On June 7, gave an interviewto The Examiner
in whfchhe imputed tbatPlaintiffwas responsfblefar swattlngs.
bttD;//www.examlner.com!article/aclj..tp-defeud..copservatiye-bJoggers-
targeted-oyer:brett"kimberUn"coyerage
105. On October 14,2013, Defendant Akbar launched a newfundraisfng
campaign based on the false narratives that Plaintift'swatted and caused
Defendant Walker tQ lose his job. WWW.bgmbersuesbloggers.com.When a
personclicks the DONATEbutton, itredirects to the same National
BloggersClub donatesltethat DefendantAkbar previouslyused to raise
moneybased on his false claimthat PlaintiffIs a swatter. "Kimberlin's 2
year campaign ofharassment, has led to bloggers losingjobs, threats of
vf.olence, and police 'SWATTlngs'...." On the same dayjDefendant Ali sent
tweets to manyofthe Defendants in this suit to.garner their help in raising
more money based on false narratives about Plaintiff.
106. of Defendant National BloggersClubread articles written by
DefendantS Frey, Walker, Ace OfSpades, Stranahan, Erickson, and McCain,
28
and then publishedtheir ownarticles linkingto those articles specifically
stating that Plaintiffswatted conservative blaggers. For example,
httPi/lwww.bob-owens.com/2012/06/anotber-consergtive-
blggger-matted-by-leftfst-dompstlc-terrorists./
http;llwww.youtube.comlwatchZV=T1S0f46A.WIM"CNN Discusses
Brett KimberUn SwattingCases With BrlckBrickson"
htt;p://newsbustm,orgJbJop/t.om-blumer/2012105128/breft-
..est.abUshment-media-Q
JJt:tP:llneoucuJaristcQm/taglbrett-kltnberlin-swattlngl
bt1;p:lIIegajinsurreclion.com/Z012IOS/a..btett-kttnberIin-sil11atlon-
could.hap,pen-to-yog/
btt;p;J/americanpgwerblgg,bIQp,pot.com/201Y05/brett-ldmberlln-
and-swatting-wbere-tsbtmJ
http;/lgranlt:egrok.com/b]ogl2Q12IOS1tbe-kimberlln-t1IeS-CQntlnue-
swattlng-the-ericksons
.ht:tD;//www,usmessageboard.comlpoliticsj22583S-brett-JdmberUn-

http; Ilpatrlollard,coml2012/OSIswatting-patt.erlco-alleges-
campalgn-Qf-telTgr-attempted-murder:by..neal.rauhaqser-mn-
bttnaert-and-brett-Wrnberiinl -
107. Defendants McCain, Walker, Frey, Stranahan, DB Capitol Strategies,
andAkbarrafsedandcontinue to ralse moneyontheir websites based on
their false narrative about the swattings. Theysolicitedthose funds In
interstate commerce through the use ofthe Internet, thetelephone and
mail. Those funds were transferred and received through inte,rstate
commerce and placed In,banks insured bythe Federal Deposit Insurance
Corporation.
108. Defendants' solicltatlonoffundsbasedon the false swattingnarrative
matI, and bank fraud in interstate commerce.
109. DefendantAkbar's solicitation of funds based on the false assertion that
Defendant National,Bloggers Club is a 501(c)(3) non-profltant all
29
donationsto Defendant National Bloggers Club are tax deductible
constitutes fraud.
FIRSTCLAIMFORRELIEF
RACKBTEBRINPLUENCESAND CORRUPTORGANIZATIONSACT UNDER

(All Defendants)
110. Plaintltfre..alleges and incorporates everyparagraphabove.
111. Plaintiffs claims under the RacketeerlngInfluenced and Corrupt
Organizations Act, 18 USC 1961-68 ("RICO") are brougbt against aU
Defendants.
112. Plaintiffis a person withstandingto sue within the meaningof18 USC
1964(c].
113, Bach afthe Defendants is a "RICO person" withinthe meaningof18
USC1963(1).
114. All Defendants and unnamed persons constitute an association-tn-
facljandtberefore an enterprise, eThe RICO Hnterprise''), within the
meaningof18 USC 1961(4).
TheMCOBnterprlse
115. At all rele\tanttimes from November 2011 through the present day,
The RICO Enterprise was an ongofngrelatlonsbip,buslness and criminal,
among'all Defendants, with the common purpose ofcreatingfalse
narratives,pubUsblngfalse narratives" usingthreats, eJCtortlon,
intimidation, harassment, assault, fraud, and misuse ofgovernment
agendesto'smear ilnd harmPlaintiff.
30
Case a:13-cv-03059-PWG Document 41-3 Filed 01127/14 Page 36 of 63
116. At aUre)evant times, TheRlCO'Bnterprise was engaged in fl\terstate
commercein that its activities and transactions relatingto Its activities as
related above affected commerce andfrequently requiredtravell
communications and financial transactions across state lines.
111. Atall relevanttimes, the members ofThe RICO BnterprJsefunctioned
as a continuingunit
118. At aUrelevant times, DefendantSconducted or participate in, and
conspiredto conduct orpartfclpate in, tbeaffairs afThe RICO Enterprise
througha pattern ofnumerous acts ofracketeerfnginviolation of18 USC
1962(c) and 1962(d),related.bytheir'commongoal to use false narratives
about Plaintiffto. fraudulently raise funds, increase readership, andsell
services.
119. Speclflcally, Defendants conducb}d or participatedin'and agreedto
conspire to conduct theaffairs ofThe RICO Bnterprise byengaging in the
following predicate'acts ofracketeering under 18
Mall fraud to further their unlawful.schemefn violation of1S USC
1341;
Wirefraud to further their unlawful scheme in violation of1S usc
1343;
Obstruction ofjustlceto further their unlawful schemein violation
of18 USC1503i
Obstruction ofcriminal investlgatlon to further their unlawful
scheme inviolation oflS USC 1510;
31
e Obstruction ofstate and-local lawenforcementto further their
unlawfulschell1e In violation of18 usc IS11;
against a witness and victimto further their unlawful
scheme in violation of18 USC 1513;
Extortion to further their unlaWful scheme in violation of 18 USC
1951;
Moneylaunderingto further their unlawful scheme In violation of
18 USC 1951.
120. in.the above Ifstedpredfcateacts in the
conduct ofaffatrs'ofTheRICO BnterprJse resulted inthe Individual
ftnancjalgain ofeach Defendant, through actual funds, advertisingand
increasedtrafticto their at the expense of business, property
and personal injuryto Plaintiff.
PredicateActs
Mall Fraud, 18 USC1341
121. Defendants through The RICO Bnterprise,-soUcited, enticed,
citizensto send moneythrougbthe-United States
to Defendants National Bloggers Club, DB Capitol.Strategies,
Akbar, McCain, Walker, Frey, Stranahanand Hoge based on the false
natrativethat Plaintlffwas Involvedfn or responsible for swattings.
12Z-Defendants through The RICO Bnterprise, solicited, enticed,
persuaded, and induced citizens to send money tbrQughthe United States
Postal Service to Defendants National BloggersClilb and Akbar based on
32
the false statements that Defendant National Bloggers Club is a S01,c3 non-
profit and that donatJonsto it were tax deductible.
123. Defendants conspiredthrough The RlC() Ellterprise, to Bollett, entice,
persuade, andInduce citizens to send moneythrough the UnitedStates
Postal Service to Defendants National Bloggers Club, DB,Capitol Strategies,
Akbar, McCain, Walker, Frey, Stranahan and !toge based on thefalse
narrative that PlaintJffwas Involved in or responsible for swattlngs.
124. RICO to solicit, entice,
persuade, and induce citizens to selld moneythrough the UnitedStates
Posta1,Serviceto'Defendants National BI()ggers Club andAkbar based on
tbefalse that Defendant National Bloggers Club is a SOleS non-
profit and that donations to It were taxdeductlble.
125. Defendants through The,RICO Enterprisewillfully, knowinglyand
Intentionally committed,and conspired to commit multiple predicate acts of
mail fraud in violation of la'USC1341, as setforth In Plaintiffs First Claim
for Relie
Wire Praud,18 USC1343
lZ6. Defendants through The RICO Enterprise, solicited, enticed,
persuaded,antl Inducedcitlzens to transinftmoneythrough
telecomrnunicationsand wire and Intemet services to Defendants National
Bloggers Club, DB Capitol Strategies, Akbar, McCain, Walker, Frey,
Stranahanand Hogebased on tbefalse DaJTative that Plaintiffwas involved
fnor responsible for swattings.
33
121. Defendantsthrough The RICO Enterprise, solicited, enticed,
persuaded, and induced citizens to sendmoney through
telecommunications and wJre and Internet services to Defendants National
Bloggers CI9b and Akbar based on the false statements tbatDefendant
National"Bloggers Clubfs aSOlc3 nonprofit and that donations to it were
tax
128. Defendants conspiredthrough The RICO Enterprise, to.solicit, entice,
persuade, and. induce citizens to send,moneythroughtelecomMunications
andwire and Internet se'rvices to Defendants National BloggersClub, DB
"Capitol Strategies, Akbar, McCain, Walker, Frey, Stranahan and Hogebased
onthe false narrative that Plaintiffwas involvedln.or responsible for
swattings.
lZ9. Defendants The RICO Bnterprise, to solicit, entice,
persuade, citizens tosend moneytbroughtelecommunicatlons
and wire and Internet services to Defendants NationalBloggersClub and
Akbar based on the false statements that Defendant National Bloggers Club
is a SOleS non-profitand that donations to it were. tax deductible.
130. The"RICO Bnterprlse wllitolly, knowinglyand
intentionally committedand conspiredto commit multiple predicate acts of
wire fraud in violation. of18 USC 1343, as setforth In Plaintiffs First Claim
, .
for Relief.
34
35
135. Defendants through The RICO Enterprise furthered their obstruction
ofjusticebycausingthreats tabe made tothe Montgomeryand HowanI
Count,y Maryland State's Attorneys and Richard
Cornelius VaugbeybecaUSe theyrejected the false narratives brought to
thembyThe )ilea Enterprise.
136. These willful, knowingand Intentlonalacts constitute obstruction of
justiceinViolation. of18 USC1503, obstruction ofa criminal investigation
in vfolatlon of18 USC 1510, and obstruction ofstate and local law
enforcementin violation of18usc1511.
iletallatioDofaWitness and .18 USC1513
137. DefendantsthroughThe RfCO Enterprise have engaged in a multi year
campaign of retaliation against PlaintiffIn orderto intimidate himfrom
beJnga wltnes.sandfor beinga victim- This retaliation came in the form of
threats ofdeath and Injurycaused byfalse narratives created and
by Defendants. portraying Plaintiffas causingDefendant Walker's
job termination and swattingconservative bloggers. Other forms of
retaliation were the assault ofPlaintiffby Defendant Walker; the flUng of
false criminal chargesJ peace orders andJrlvolous civil suits against Plaintiff
byDefendants Walker and Hoge; attemptingto extort'a settlement from
PJalntlffin exchange for dismissinga malicious federcdlawsuit; publishing
threatening
PlaindffWithImprisonment based on false narratives; and threatening
Plaintiffs family.
36
37
and laundered for his own purposes, without anyaccountingand without
filingatlySectian 990 returns with the Internal Revenue Service,
Defendant Akbar refusedan requests made to himand Defendant National
Bloggers Club to.provide a copyafanySection501(c)(3). determination
IssuedbytheIRS for the National BJoggersClub. DefendantAkbar refused
allrequests made tohill\ and the National l:lloggersClub for an accounting
afthe funds he received and disbursed tramhis false narratives about
Plaintiff:
142. Defendants through The RICO Enterprise lmewor had reason to know
thatpefendant National Bloggers Club was not a SOl(c)(3)non..profit and
thatdonatfons made tothe National Bloggers Club were not tax deductible,
andtbatDefendantAkbar and the National BloggersClub were committing
fraud bysollcldngand receivingfunds basedan those fraudulent
representations and on Defendants- false narrative that Plaintiffwas
involved,withSWattlngs.
143. Defendants through The RICO Hntemrise engaged in. these monetary
transactions derived- throughfraud in a value greater' tbalr$10,OOOin
interstate commerce. These monetary transactions included deposits,
withdrawals, transfers and exchanges to, fromand throughfinancial
institutions In the United States.
144. These willful, knowing and Intentional acts constitute engagingin
mc;met8rytransaetions in propertyderived fromspecified unlawfulactivit;y
in.viobition'of18 USC 1957.
38
PattemofRelatedRack:eteerlngAds
145. Defendants engaged in the racketeeringactivityand commission. of
predicate acts asdescribed Inthfs Complaint, beginninginAugust 2010 and
cOlttlnuhlguntil the present time.
146. As set fortb above, Defendants have C()mmitted at least two predicate
actsofracketeerlng,activitJes'in the past 10years.
141. Defendants implemented the racketeeringacts describedin this
Complaintas a business model for The RICO Enterprise.
14& Defendants' racketeeringacts have or had sitnilar purposes; to profit
from the fraudulent narratives about Plaintfft toprQf1tfromthe money
laundenngschemes, and to Increasethe value oftheir websites and media
operations through t h ~ use ofthose false narratives.
149. As setf9rthabove, Defendants' racketeeringacts have or had simUar
participants; somelnsupervisoryroles such as-Defendants FreyandAkbar,
and others insupport roles such as the other Defendants.
150. As setforth above, Defendants,'throughThe RICO Enterprise, directed
their activities at Plaintiff. The Defendants r e ~ e d The RICO Enterprise as
a buslnessmodeltorafse funds through fraudulent means: create false
narratives,about Plaintiffsuchas swattings, demonize himwiththose false
narratlves,false.1yportrayPlaintiffasvietimizlngDefendants and violating
their-rights, breathlesslysolicit donations It order to fight Plaintiff, falsely
promise donors that their moneywin gatoa SOl(c)(3) non-profit, receive
tens ofthousands in donations) launder thatmoneywithnoaccountability,
39
and.spendorpocketthatmoneywhiJe increasingtraffic and value to their
webSites and mediasites.
151. Defendants' acts have or had similar methods ofcommission, such as
commonfalse narratives againstPlaJntiftconslstent practices with respect
to collectingdonations for a non-existent SOl(c)(3) non-profit and the use
ofstonewalUngand liesWhen asked for transparency and accountabiJit.

InJury
152. As a dlrectand proximate result ofDefendants' willful, knoWingand
mtentlonalacts, as set forth above, PJaintlft"has suffered injuryto his name..
propertyand businesses, Inc:lllllng, but not limitedto: 'haVinghis name
falselyassociated Wfthswattlngand othercrimes'and false narratives;
havinghis employer defamed based on thosefalse narratives; havingto
spenduntolc:l hours,days and weeks defendingagainst the false narratives;
havingto spend moneydefendingagainst the false narratives; losing
employmentandfllndingopportunities, andother.pecuniaryand losses to
real or personal propel't.
153. Plaintifffs entitled to an award ofdamagesln an amount tobe
determined t t r ~ includingtreble damages and other fees and costs
associated withthis action.
SECONDCLAIMPORRBLIEP
VIOLATIONOFTHECIVIL RIGHTSACTOF 1866, 42 USC1983
. (DefendantPrey)
154. Plaintiff-re-alleges and incorporates every paragraphabove.
40
lSS. Plaintiffasserts this claimunder 42 USC 1983 for declaratory relief
and damages against Defendant Frey.
156. As set forthabove, the actions ofDefendant Frey- such as creating
false narratives about Plaintiffcommittingcrimes, Includingswattings,
planninggangattacks on Plalhtitfbased on false narratives Imowlngtbat
such attacks would result in threats ofinjuryand death, failing to contact
lawenforeement,when a personthreC(tenedto murder Plaintitt attempting
. to get'the.groupAnonymous to'retaliate against Plaintiff, and directing
other Defendants narratives and make false criminal
order toharmhim.. were done uhder color
ofstate law,speclftcallyasanAssistant DistrictAttomeyfor Los Angeles,
Califorllia, withthe Imowledge and permlssion'ofhis supervisors in the Los
Angeles DistrictAttorney's Office.
157. Defendant Preyknowingly, wtDrully, maliciously, Intentionallyand
without IepljustlflcationpJanned and acted to deprive PlaintiffofMs civil
andconstitutlonalrights.
158. Defendant Freyknowingly, willfully, maliciously, intentionallyand
wIthoutlegal justificationactedto deprive Plaintiffofhis civil rights.
159. Asa result ofthe unlawful acts ofDefendant Frey, Plaintiffsuffered
dalDaps.
160. Plaintiffseeks all appropriate relief, includingdeclaratory, fees, costs,
and daltlages, Including compensatoryand,punitive,.in an amount t? be
detennined at trial.
41
THIRDCLAIM'ORRELIE'
VIOLATIONSOF THEKUKLUXKLANACTOP 1871,42USC1985
161. Plaintiff..re!"alleges and Incorporates everyparagraph above.
162. Plaintiffasserts this claimpursuant to 42 USC 1985(2) and (3) for .
declaratoryreHef, and damages against Defendants.
As set forth'above, Defendants conspired, agreed, plannedand
coordinated with Defendant Frey, actingunder color ofJaw, for the purpose
ofdeprivJngP)cdntltforbIs constitutional and ciVil rights, includinghis First
Amendment right toseek redress from the courts, his FifthAlnendment
right to due ptocess,hls constitutional rigbtto privacy"his First
Amendment right to speech, and his overarchingright be safe In his
everydayactivtties.
164. Defendants conspired to deter Plaintiff, by force, intimidation, or
threat; from attendingcourt, or fromtestifyingto any matter pending
therein, freely,fllIly, and truthfully, and toinjurePJafntiffin bfsperson or
propexv Oil accoUnt ofhis havingso attended or testified.
165. Defelldantsknowingly, willfully, maJiclously, intentionally, and
JllstiftCaijon plannedandacted to deprive Plaintiffofhfs rights.
166. Asa,result ofthe'unlawful acts of Defendants' conspiracyto violate his
rights, Plaintiffbas suffered damages.
167. Plaintiffseeks all appropriate relief, Includingdeclaratory, fees, costs,
and damages, includingcompensatoryand punitive, in an amount to be
determined' at trial.
42
POURTHCLAIMFORRELIEF
PRAUDAND NEGLIGENTMISREPRESENTATION
168.. Plafntiff're-alleges and incorporates everyparagraphabove.
169. As set forth above. DefendantsmadematerJaUyfalse and untrue
statementsand representations regardingPlaintiff's involvement in
swattings, and regardlngtbe 501(c)(3) status ofDefendant National
BloggersClub.
170. Asset forth above. Defendants.lmowfnglyor negligentlyfailed to
dJsclose material and truthful facts regardingthe swattfngs and the
501(c)(3) status orDefendant National BloggersClub.
171. Defendants intendedthat their false statements would induce others
to believe their false narratives and would Induce themtosend moneyto
DefendantNationalBlqggers Club.
172. Manypeople relied on Defendants' fraudulent representations and
rnore than $10,000 to Defendant NatfonalBloggers Club, including
manywho did believingtbat theywould get a taXdeduction for their
donation.
173. Manype()p}e relied on Defendants' fraudulent representations about
swattings, and then wrote blogposts andarticles based onthose false
representations defamingPlaintiffas beinginvolvedwitbthe
174. further made false representatio,ns and/or omissions with
the intent.ofobtaining(avorable media exposure for their false
representations, pressuringthe States Congress and PBI to
Investigate Plaint:ltt and to harmPlaintiff.
43
115. As a direct, pro?dmate and foreseeable result ofDefendants' knowing,
willing, intentional and/or negligent actions, Plaintiffhas been injured,
ittcludingslgniflcantpecuniary, reputational, and other damages.
176. PlaintiffIs entitled to recover compensatoryand punitive damages in
an amount proven at trial.
FIFTHCLAIMFORRELIEF
DEFAMATION
111. Plaintlffre-alleges and Incorporates every.paragrapbabove.
178. Defendants have intentionally, knowinglyand/or recklesslypublished
and disseminated the false and defamatory'statements identified above
regardingswattings onthe"lnternet, ontelevision. on and in print
wheretbey'bave been easilyaccesslble,andwere accessed mymany
pe(jple, children, friends, business associates
and actual and prospective partners and others.
119. Defendants' .defamatorystatements regardingPlaintiffs Involvement
inswattlngs have'caused and continue to cause substantial injuryto
Plaintiff, his business and personal well-being.
180. The statements have caused and continue to cause deep
embarrassment, humiliation, opprobrium, emotional distress and mental
sufferingto Plalntift:
181. Defendants' false and defamatorystatementsand the implications
drawn fioom themconcerningPlaintiffare,defamatory persebecause they
allege crimes and make Plaintiffappear odious, infamous, and/or
frightening.
44
182. Defendants published these false and defamatorystatements to third
parties who reasonablyunderstood the pUblished statements to be
defamatory.
183. Defendants were aware ofthe defamatoryImplication oftheir
s.tatements about Platntitt and intended and endorsed the defamatory
impHcation.
184. Defendants. published these false and defamatorystatements about
Plaintiffeven though theyknewthattheywerenot based on fact or truth.
185. Defendants pUblishedthese false and defamatorystatements about
Plaintiffwithlmowledge oftheir falsityand/or reckless disregard for their
truth.
186. Altentatlvely, Defendants publishedthese false and defamatory
statements aboutPlaintiffnegligentlyas the truth or falsityofwhat they

1$1. Each aftha Defendants was directlyinvolved and responsible far the
false anddefamatorystatements that were published about Plaintiff.
188. Defendants publishedthese false and defamatorystatements with
both common Jawand actual malice, and with the intent ofharming
Plaintiff.
189. Defe.ndants p..blished.thesefalse and defamatorystatements dayafter
day, weekafter week, with the attacks becomingmore coordinated,
as time progI'essed.
45
190. Defendants' defamatorystatements were repeated and republished
by other and bloggers, thereby compounding the harmto Plaintiff:
191. None ofthe D.efendants has retracted their defamatory statements or
removed themfromtheir websites, blogs or media oudets.
192. Defendal'lmaJso published these defamatory.and false statements In
order'to Increase traffic totheir blogs and to raise moneyfrom
unSU$pectingreaders who believed their statements.
193. Defendants' false and defamatorystatements have caused Plaintiffto
sustain damages.
194. Defendants' actions againstPlalntlffwere willful, wanton and
malicious, were intendedto deliberatelyharmPlaintiff, and were made
wftha calloUS Indifferenceto Plaintiff:
195. Thus, in publtshfngthe numerous false and defamatorystatements
about Plalntiff"Defendants acted an improper and outrageous motive
or 'caUousindifference to Plaintiffs rights andinterests. Asa result of
Defendants' outrageous and repeated-conduct, Defendants should be
Ordered to paysubstantial compensatoryandpunitivedarnages.
SIXTH CLAIM FORRELIBF
FALSELIGHTINVASIONOF PRIVACY
196. PlalntiffteaUegesand incorporates everyparagraphabove.
197. Defendants' Statements and articles above contafnedfalse statements,
representations orimputatlons about Plaintiffthat place himIn a false
light.
46
198. As stated above, Defendants portrayed Plaintiffasbeinginvolved with
swatting, aserIous.crime.
199. The false light in which Defendants placedPlaintiffwould be
considered highlyoffensive to a reasonable person.
200. Defendants were each compUcit in and responsiblefor casting
Pblintifffna falseUght andviolatlnghis
201. Defendantsdl$Seminatedtheir articles on the
radio and In print where theywere widelyavailable toandaccessible by
members ofthe general public across the globe.
202, Defendantslmewthat their actions andstatements had the effect of
castingPlaintiffin afalse light but nevertheless continuedto doso week
after. week, article after article andtweetafter tweet
203. Alternatively, Defelldants were negligent in the publication oftheir
statements about Plaintift the effect ofwhich was to portray PIaintitfina
faJseUght
204. Defendants' portrayal ofPlaintiffIn a false.light, as stated. above,
causedsubstandalinjuryto Plaintlfl's reputation, business.lnterests, and
mental well-being.
205. Defendants' placing Plaintiffin a false light has caused Plaintitfto
sustain substantial damages.
206. Defendants' actions against Plaintiffwere willful, wanton and
malicious, and were intended to deUberately harmPlaintlft:
47
207. Thus, D'efendants acted with an improper and outrageous motive or
careless indifference to Plaintiffs rights and interests. Defendants'
olltrageous conduct warrants the imposition ofsignificant compensatory
andpunitive damages.
SEVENTHCLAIMPOR RlLJEIl
INTENTIONAL INFLICTIONOF BMOTlONAL DISTRESS
208.Plah1tiffre..allegesandtncorporatesevery paragraphabove.
209. Defendants' defamatoryand false statements, intentional
misrepresentations and wide publication.offaJse statements about
Plaintiff's Involvement in swattingconstitute extreme and outrageous
c()nduct
210. Defendants' causaland In concert relationship to the assaultof
PJafntlffby Defendant Walker, the manythreats ofdeath and Injuryto
Plaintiffand his family, and the demands for Plaintiffs arrest and
imprisonment on the basts offalse statements about swattings,
demonstrates malice with an intent to cause maximumharmto Plaintiff
211, DefendantSactions were donelntentionally'and/or recklesslyIn
conscious disregard ofthe high probabilitythat Plaintiffs mental distress
wouldfollow.
212. As a result ofDefendants' actions, Plaintilfhassutfered severe
emotional distress and mental anguish.
48
PUNITIVEDAMAGES
213. actions or omissions ofDefendants set forth in this Complaint
demonstrate malice, egregioUs conduct, Insult, and a. perversegratification
from toPlalntitf. Such actIons or omissions by Defendants
were undertaken witbeither (1)maliciousness, spite, Ul will, vengeance or
intenttohann Plalntiftor(2) reckless. disregard ofthe profound
wrongfulness oftheir actions or omissions, andtheir harmful effects on
Plaintlft:Ac:conUngly, Plaintiffrequests an award ofpunidve damages
beyond and in excess ofthose damages necessary to compensate Plaintiff
for injuries resulting from Defendants' conduct
PRAYERFORRELIEF
WHERBFOitB, Plaintiff following relief:
Compensatorydamages and consequential damages In an amount
exceeding$75,000;
Punitive damages as applicable to punish Defendants' reprehensible
conduct and to deter future occurrence;
Treble damages as authorized' by RICO, 18 USC i964(e)i
DeclaratoryreliefIn the form.ofan Order findingthat Platntiffliad no
involvement in anyswattings;
An order enjoining Defendants from engagingIn future-tortious
conduct against Plaintiff;
49
An order requiring Defendants to remove anydefamatorystatements
about swattingby Plaintifffrom blogs or media over which they have
control;
For equitable reliefas appropriate pursuant to applicable law,
including-,but not Umited to issuinga temporaryrestraining order, a
preliminaryinjunction and a permanent Injunctionthat bars
Defendants from retaliatingagainst Plaintiffin anyway for bringing
this action.
Costs and fees incurred in the prosecutionoftbis actloD,and
Further reliefas this Court deems Just andappropriate.
JURYDEMAND
PlaintiffKimberlin herebydemands aJurytrial'ofall issues inthis action
triableasofrlgbt bya jury.
October11, 2013
50
Tab 3
.- '.
Case 8:13-cv-OS059-PWG Document 21 Flied 12130/13 Pagel of 2
UNITED STATES DISTRICTCOURT
DISTRlCf OFMARYLAND
December 30,2013
RB: KImberlin'V, NationnlBlqggers Club et Q/.
PWG13..3059
LETrERmmER
DearParties:
11ds'Letter Order addresses: (1) Defendant WilliamHoge's Motion to Require Verified
:pleatlings' .mnn.Plainti1f(the "Boge Mol"), BCF,No.7; (2) Defendant Aaron Walbr's Motion
to Requite, the Plaintiff to FlIe Verified Papers in Future Filings (the ''Walker Mot." and,
with 1heHoge Mot., tho 4'VerilY Mots"',BCF No.9; and (3)}llaintiff Brett
Motion. for BxtensioD of Time in Which to to Motions by
Defendants ("Pl.'s Mot. BCFNo. 18, and DefOlidantDB Capital Strategies PLLC's
Opposition,- BCFNo. 19. Although none ofthese three motions is 'ripe, itis readily apparent that
they ,"' appropriate :Cor-expedited molutioD and that 'a 'hearing is Dot necessary with respect to
ofthem. SeeLoc. R. 105.6.
First, both the Hoge Motion and the seek the same relief for same
reason: both ask that1requirePlaintiffto verlfylds'future pspera on thegrounds that he has been .
conviotedofperJUlYand ''ltasan ongoing histoJy ofmakingfids,,'statemcnts:' Hoge Mol .1-
2; Walker Mot W1-2. Plaintifrs response, ifany, is due today with respect to the Roge Motion
andonJamuny2, 2014 with the Walker Motion; as yet, Plaintiffhas not responded to
either VeritYMotion. .
Even that-the facts set forth in. the VeritY Motions are we and are,conceded by
PJaint:if( the Verify Motions do not state avalidbasis for relie First, neitherVerify has
cited any case law for the,proposition that a party that has "een convicted ofperjl1l1' should be
required tQ verify his :filings ijl future. lawsuits. Second, Plaintiff already is subject to the
requirement under Fed. R. Civ. P. 11(b)(3)-(4lthat he certifythat or
likely will have evidentiary support, and issubject to aanctionsshould he fidsety so certify. The
Federal Rules ofEvidence proVide Defendants withampJe opportunity- to impeach PlaintifIif.he
should testUY at trJal or an evidentiary hearing. Until such time, 1 find that Rule 11 provides
suflicient cleterrence against and adequate sanctioDS for false statements by a party, and therefore
both thoHogeMotiODand the WalkerMotion willbeDBNIBD.
As fbr Plaintift"s Motion to &tend, only a single response has been-receiVed. See DB
the earliest of the dead11Des that Plaintiffseeks to oxtend is today, and
therefore < coDSidemtion is appropriate. Plaintitf seeks extensioDtOFebruary 28
2014 because he isattempt1ng to find counsel, PI.'8 Mot. to Extend" 2-3, because he wishes to
have a, single date to file responses to to dismiss,id 11 4, and because he believes that
.. ..
case S:13-cv-03059-PWG Document 21 Filed 12130/13 Page 2of-2
.
"( Defendants deliberately have filed motiol1S1imed to dismpt the holidays for Plaintift: Defendant
DB Capital has, in essence, taken the pOSitiOD that' Plaintiff's claims are mvoJous,that
Defendants-lJave-1trigbttohavO':uprompt tesolutiolt totheir motIODS' todismisSiandtbat Plaintiff
is nOhmtitled to special solicitudebecause he is unrepresented. SeeDB CapitalOpp'n.
plaintiffCQntroUed when be filed his complaint and, within limits, exeJCises considerable
control over when Defendants are served, within a wide. 120-day window. See Fed. R. Civ. P.
4(m). Accordingly, Plaintiff1mew when he filedbis Complaint that he wssunrepresented, and
knew or shouIdhave 'bownthat serving Defendants in mid-November may require him to
reSpond to Rule J2 motions in Jate December. Thus, neither of these arguments merits an
extension oftime, and certainly not an additional. two months as requested.
However, .Plaintiff has .muned over tweIltyDefendants,.and, although 1 understand the
coucemsofDB capital that this case not be dragged out indefinitely. if it will not cause undue
there is cODSiderable value and efficiency in. allowing for tho simultaneous briefing and
resolution of all Rule 12 motious if possible, mther than: addressing thcmseriatim.
Un{ortunately, PlaintUf has not provided any indication as to ,whether he has served any
Defendants who have not appeared Of, if not" when he .. to.. do so. Without this
information. it infonnedruliog onPJaintiff's Motionto BxtencL
Accordingly, Plaintiff's Motion to Bxtend will be GRANTBDJN PART, and Plaintiff
mayhave until January 17, 20l4to:filehJsresponse to alloffhependingmotions. Further, by or
beforeJanuarY 10,2014, PlaintiffSHALL FaB,aslatus report containing, with respect to each
Defendant:
i) Whether that Defendant has been served;
ii) Ifso, the date andmethodofservice; and
iii) Ifnqt;tbe effortsthat Plaintiffhas undertaken to serve said Defendant.
. - .
Ifit appears that it may be possible to set a single. consolidated schedule' that will apply
to Rule 12 motioDs by a. substantial number of Defendants, I will entertain motions fiom all
parties to set such a once Plaintiff's status report has been filed. lino!, Plaintiffwill not
be granted additionalextcmsionswithout good-cause. All parties areadvised. that Defendants can
eXlectsimilar solicitudeshouldthoyrequire additional time OfcOnsideration with respect to their
rep1ies.
Inswn, Defendant Hogeand Defendant Walker's motioDS to require verified papem, BCF
J'108. 7,9. areDBNJBJ); to Exrenat ECF 18, is GRANTEDINPART, and
PlaintiffSHALLPILBa status report byorbetbre-lanuary 10,2014.
'A1tbougbiDformal, this is an Order oftbeCourt andshaUbe docketed as such.

lSI
Paul W. Grimm
United States District Judge
Case a:13-cv-03059-PWG Document 41-3 Filed 01/27/14 Page 59 of 63
Tab 4
Case a:13-cv-03059-PWG Document 41-3 _Filed 01127/14 Page 60 of 63
December31,2013
Dear D,rl$dantin Kimberlin v. NationalBloggers Club,
I prmously-sentyoua copyofthe Complaint in thfs case alongwithan Informal
As oftodlW's date, aUhave not ftledany pleacUnpIn the case or
contactedInanyoth,rway. Therefore. IamseJlc:UDgyou a fqrmal summons along
wftbanother-copyofthecaseandan Ordedssuedyesterdaybythe Court requiring
me tQsubmit a report byJanuary 2014 regardmgservice toyou.
Please'letmelmowthat you havereceived thisand.whenyoq wlU be flUngyour
answer Inthe case.

I
lIethesda, ND 20817
JAN 08 fll}.
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,dUNITEDSTATES
POSTAL SERVICE. '"U
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l ;:. . .0 . .,.' " .!"
for the
District ofMaryland 13
Brett Kimberlin
PlaJntlff
v.
National Blaggers Club, et aI
)
)
)
)
)
)
)
Civil Action No. 1:3 CV U59
SUMMONS IN ACIVIL ACTION
To: (l)ef1tfdt!nt'3nGMand.tItidI'as)I
AarOn
Walker I
Manassas, VA 20109
Alawsuit has been filed against you
WitJUn 21 days after service of this SlDDDlODS on you (not counting the. day you received it) - or 60 days ifyou
are the United States or a United'States agency, or an Qfficer or employee ofthe United States described in Fed. R. CW.
P. 12 (aX2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion mtder Rule 12 of
the Federal Rules Of Civil or motion must be served on the plaintiff or plaintiff's attorney,
whose-name and address are. I
Bethesda, MD 20817
Ifyou fail to respond. judgment by default will be entered against you for the relief demanded in the complaint
You must file your answer or motion with the court.
CLERKOFCOURT
Date: 11/12/2013
SIgnotuHofClerk or Deputy
._---_.._-----------------------------------
GREENBELT DIVISION
BRETT KIMBERLIN,
*
Plaintiff,
v.
NATIONAL BLOGGERS CLUB, et aI.,
Defendants
*
*
*
*
Civil Action
PWG 13-3059
* * * * * * * * * *
PROPOSED ORDER
Upon consideration of the Motion to Dismiss First Amended Complaint filed by Defendant
Michelle Malkin and non-party Twitchy.com, and after reviewing the Memorandum submitted in
support and plaintiffs Response in opposition and being otherwise fully informed in the grounds, it is on
this __day of , 2014, by the United States District Court for the District of Maryland,
ORDERED THAT:
(1) The Motion to Dismiss be, and hereby is, GRANTED, and this matter is DISMISSED
WITH PREJUDICE; and
(2) Defendant Malkin and non-party Twitchy are hereby AWARDED COSTS AND
ATTORNEY FEES incurred in defending this action, under the Court's inherent powers, in an amount to
be determined by the Court.
SO ORDERED.
Dated: ,2014
----------
Paul W. Grimm
United States District Judge

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