Ecf 83

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

DEFENDANTS THE BLAZE, INC., MERCURY RADIO ARTS,
AND GLENN BECKS MOTION TO DISMISS THE FIRST
AMENDED COMPLAINT, AND FOR ATTORNEYS FEES AND COSTS

Defendants The Blaze, Inc., Mercury Radio Arts, and Glenn Beck (collectively, the
Blaze Defendants), by their undersigned attorneys Cowan, DeBaets, Abrahams & Sheppard
LLP, and pursuant to Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P. 8(a), and Fed. R. Civ. P. 9(b), file
this motion asking the Court to dismiss with prejudice the First Amended Complaint and award
them their attorneys fees and costs. In support, the Blaze Defendants rely on and incorporate
the accompanying memorandum of law, attached hereto as Exhibit A, and the Declaration of
Eleanor M. Lackman, attached hereto as Exhibit B.
WHEREFORE, the Blaze Defendants ask this Court to enter an order dismissing the First
Amended Complaint with prejudice, and award costs, including attorneys fees and such
additional relief as the Court deems just and proper.

BRETT KIMBERLIN,

Plaintiff,

v.

NATIONAL BLOGGERS CLUB, et al.,

Defendants.

Case No. 13-cv-3059 (PWG)

Case 8:l3-cv-03059-PWG Document 83 Filed 02/2l/l4 Page l of 2
2
Dated: New York, New York Respectfully submitted,
February 21, 2014

COWAN DeBAETS ABRAHAMS
& SHEPPARD, LLP

By:_/s/Eleanor M. Lackman ___________
Eleanor M. Lackman (pro hac vice)
41 Madison Avenue, 34
th
Floor
New York, New York 10010
Tel: (212) 974-7474
Fax: (212) 974-8474
ELackman@cdas.com

Attorneys for defendants The Blaze, Inc.,
Mercury Radio Arts, and Glenn Beck

Case 8:l3-cv-03059-PWG Document 83 Filed 02/2l/l4 Page 2 of 2


DEFENDANTS THE BLAZE, INC., MERCURY RADIO ARTS, AND GLENN BECKS
MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS

BRETT KIMBERLIN,

Plaintiff,

v.


Defendants.


Case 8:l3-cv-03059-PWG Document 83-l Filed 02/2l/l4 Page l of 3l

i

TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ................................................................................................... iii

PRELIMINARY STATEMENT ...............................................................................................1

FACTUAL BACKGROUND ....................................................................................................2

ARGUMENT .............................................................................................................................4

I. KIMBERLINS CLAIMS FOR DEFAMATION AND FALSE
LIGHT INVASION OF PRIVACY SHOULD BE DISMISSED
BECAUSE THEY ARE UNTIMELY ...............................................................4

A. Kimberlin Filed His Defamation Claims Well Beyond Marylands
One-Year Statute of Limitations ..................................................................5

B. The Same Statute of Limitations Applies to False Light Invasion of
Privacy, Rendering Kimberlins Claim Similarly Untimely........................6

II. KIMBERLIN FAILS TO STATE ANY CLAIMS WHATSOEVER
AGAINST MERCURY RADIO ARTS ............................................................6

III. PLAINTIFFS CLAIMS AGAINST THE OTHER BLAZE
DEFENDANTS SHOULD ALL BE DISMISSED FOR FAILURE TO
STATE A CAUSE OF ACTION UNDER RULE 12(B)(6) ..............................8

A. Kimberlin Fails to State a Claim for Defamation Against the Other
Blaze Defendants .........................................................................................8

B. Kimberlins Claim for False Light Invasion of Privacy Fails for the
Same Reasons His Defamation Claim Fails ..............................................13

C. Kimberlin Fails to State a Claim for Intentional Infliction of
Emotional Distress Because The Blaze Defendants Actions Were
Not Sufficiently Extreme and Outrageous .............................................14

D. Kimberlin Cannot Maintain His Claim for Fraud or Negligent
Misrepresentation Because His Pleadings Are Insufficient Under
the Federal Rules of Civil Procedure .........................................................16

i. Kimberlins Fraud Claim Lacks Sufficient Particularity
Under Rule 9(b) .............................................................................17
Case 8:l3-cv-03059-PWG Document 83-l Filed 02/2l/l4 Page 2 of 3l

ii

ii. Kimberlin Fails to State a Plausible Claim for Negligent
Misrepresentation ...........................................................................18

E. Kimberlin Fails to State a RICO Claim Because Kimberlin Does
Not Plead Any Valid Predicate Act of Racketeering Against the
Blaze Defendants .......................................................................................19

F. Kimberlins Claim Under the Ku Klux Klan Act Should Be
Dismissed Because Kimberlin Does Not, and Could Not, Plausibly
Assert Any Class-Based Bias by the Blaze Defendants ............................21

G. Kimberlins Claim for Punitive Damages Is Inappropriate Because
Punitive Damages Is a Remedy, Not a Cause of Action ........................22

CONCLUSION ........................................................................................................................23


iii

TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Sara Lee Corp.,
508 F.3d 181 (4th Cir. 2007) .....................................................................................................7
Apple v. PrudentialBache Sec., Inc.,
820 F. Supp. 984 (W.D.N.C. 1992) .........................................................................................18
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .....................................................................................................4, 7, 8, 12
Atl. Forest Prods. LLC v. Wm. M. Young Co. LLC,
CIV.A. RDB-11-0241, 2011 WL 6351851 (D. Md. Dec. 19, 2011) .................................18, 19
B.N. v. K.K.,
538 A.2d 1175 (Md. 1988) ......................................................................................................16
Bagwell v. Peninsula Regl Med. Ctr.,
665 A.2d 297 (Md. Ct. App. 1995) ..............................................................................13, 14, 15
Bartlett v. Frederick County, Md.,
246 F. Appx 201 (4th Cir. 2007) ............................................................................................18
Batson v. Shiflett,
602 A.2d 1191 (Md. 1992) ......................................................................................................15
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...................................................................................................4, 7, 12, 19
Bray v. Alexandria Womens Health Clinic,
506 U.S. 263 (1993) .................................................................................................................21
Brenner v. Greenberg,
08 C 826, 2010 WL 4719694 (N.D. Ill. Nov. 15, 2010) ....................................................12, 13
U.S. ex rel. Brooks v. Lockheed Martin Corp.,
423 F. Supp. 2d 522 (D. Md. 2006) .........................................................................................17
Cardillo v. Doubleday & Co,
518 F.2d 638 (2d Cir. 1975).....................................................................................................12
In re Cree, Inc. Sec. Litig.,
333 F. Supp. 2d 461 (M.D.N.C. 2004) ....................................................................................18

iv

Davis v. Passman,
442 U.S. 228 (1979) .................................................................................................................22
Figueiredo-Torres v. Nickel,
584 A.2d 69 (Md. 1991) ..........................................................................................................16
Fitzgerald v. Penthouse Intl,
525 F. Supp. 585 (D. Md. 1981) ................................................................................................9
Foretich v. Capital Cities/ABC, Inc.,
37 F.3d 1541 (4th Cir. 1994) ...............................................................................................9, 10
Franklin v. Gwinnett County Pub. Sch.,
503 U.S. 60 (1992) ...................................................................................................................22
Gertz v. Robert Welch, Inc.,
418 U.S. 333 (1974) .......................................................................................................9, 10, 11
Glaser v. Enzo Biochem, Inc.,
303 F. Supp. 2d 724 (E.D. Va. 2003) ................................................................................17, 18
Grant v. Shapiro & Burson, LLP,
871 F. Supp. 2d 462 (D. Md. 2012) .........................................................................................20
Harris v. U.S.,
417 F. Appx 285 (4th Cir. 2011) ........................................................................................4, 15
Harrison v. KVAT Foods Mgmt., Inc.,
766 F.2d 155 (4th Cir. 1985) ...................................................................................................22
Hatfill v. The N.Y. Times Co.,
532 F.3d 312 (4th Cir. 2008) ...................................................................................................11
Informatics Applications Grp., Inc. v. Shkolnikov,
1:11CV726 JCC/JFA, 2011 WL 4804870 (E.D. Va. Oct. 11, 2011).........................................7
Iron Workers Local 16 Pension Fund v. Hilb Rogal & Hobbs Co.,
432 F. Supp. 2d 571 (E.D. Va. 2006) ......................................................................................17
Jones v. Clawson,
CA 5:11-1533-RBH-KDW, 2012 WL 3096048 (D.S.C. July 17, 2012) ...................................7
Juntti v. Prudential-Bache Sec., Inc.,
Civ. No. 92-2066, 1993 WL 138523 (4th Cir. Mar. 4, 1993) ..................................................18
Kearns v. Northrop Grumman Sys. Corp.,
CIV. A. ELH-11-1736, 2012 WL 1183017 (D. Md. Apr. 6, 2012) .........................................14

v

Kerby v. Mortgage Funding Corp.,
992 F. Supp. 787 (D. Md. 1998) ..............................................................................................20
Kimberlin v. Quinlan,
6 F.3d 789 (D.C. Cir. 1993) .....................................................................................................10
Kimberlin v. White,
7 F.3d 527 (6th Cir. 1993) .......................................................................................................10
Kimm v. Chang Hoon Lee,
No. 04 Civ. 5724, 2005 WL 89386 (S.D.N.Y. Jan. 13, 2005) .................................................21
Leopold v. Levin,
45 Ill. 2d 434 (1970) ................................................................................................................10
Logan v. District of Columbia,
447 F. Supp. 1328 (D.D.C. 1978) ......................................................................................12, 13
Marchese v. JPMorgan Chase Bank, N.A.,
917 F. Supp. 2d 452 (D. Md. 2013) .........................................................................................17
Mayfield v. NASCAR,
674 F.3d 369 (4th Cir. 2012) ...................................................................................................12
McClure v. Lovelace,
78 A.3d 934 (Md. Ct. App. 2013) ..............................................................................................5
In re Medimmune, Inc. Sec. Litig.,
873 F. Supp. 953 (D. Md. 1995) ..............................................................................................19
Monroe v. City of Charlottesville,
579 F.3d 380 (4th Cir. 2009) .....................................................................................................8
Nanji v. Nat'l Geographic Soc.,
403 F. Supp. 2d 425 (D. Md. 2005) .....................................................................................8, 11
Piscatelli v. Van Smith,
424 Md. 294, 35 A.3d 1140 (2012) .........................................................................................13
Proctor v. Metro. Money Store Corp.,
645 F. Supp. 2d 464 (D. Md. 2009) .........................................................................................20
Profls, Inc. v. Berry,
923 F.2d 849 (4th Cir. 1991) ...................................................................................................20
Redmond v. Black & Decker Med. Plan,
Civil No. CCB-04-1973, 2006 WL 1892420 (D. Md. June 15, 2006) ....................................11

vi

Ross v. Cecil County Dept of Soc. Servs.,
878 F. Supp. 2d 606 (D. Md. 2012) .........................................................................................13
Serian v. Penguin Group (USA), Inc.,
No. 1:08CV74, 2009 WL 2225412 (N.D. W.Va. July 23, 2009) ..............................................2
Shepard v. Nabb,
581 A.2d 839 (Md. Ct. Spec. App. 1990) ..................................................................................5
Sirpal v. Fengrong Wang,
CIV. WDQ-12-0365, 2012 WL 2880565 (D. Md. July 12, 2012) ....................................15, 16
Smith v. Esquire, Inc.,
494 F. Supp. 967 (D. Md. 1980) ................................................................................................6
Tani v. Wash. Post,
CIV. PJM 08-1130, 2009 WL 8652384 (D. Md. June 18, 2009) ..........................................5, 6
The Austvard,
34 F. Supp. 431, 437 (D. Md. 1940) ........................................................................................10
Time, Inc. v. Johnston,
448 F.2d 378 (4th Cir. 1971) .....................................................................................................9
U.S. v. Brehm,
691 F.3d 547 (4th Cir. 2012) ...................................................................................................10
U.S. v. Kane,
434 F. Appx 175 (4th Cir. 2011) ............................................................................................10
U.S. v. Kimberlin,
692 F.2d 760 (7th Cir. 1982) ...................................................................................................10
U.S. v. Kimberlin,
781 F.2d 1247 (7th Cir. 1985) .................................................................................................10
U.S. v. Kimberlin,
805 F.2d 210 (7th Cir. 1986) ...................................................................................................10
United Bhd. of Carpenters v. Scott,
463 U.S. 825 (1983) ...........................................................................................................21, 22
Valencia v. Drezhlo,
No. RDB-12-00237, 2012 WL 6562764 (D. Md. Dec. 13, 2012) ...........................................11
Weaver v. Torres,
No. Civ. A. WMN-00-1126, 2000 WL 1721344 (D. Md. Nov. 17, 2000) ..............................21

vii

Wells v. Liddy,
186 F.3d 505 (4th Cir. 1999) ...............................................................................................9, 11
White v. Ocean Duchess Inc.,
No. 2:07CV300, 2007 WL 4874709 (E.D. Va. Nov. 7, 2007) ..................................................7
Williams v. Walsh,
558 F.2d 667 (2d Cir. 1977).....................................................................................................22
Wynberg v. Natl Enquirer, Inc.,
564 F. Supp. 924 (C.D. Cal. 1982) ..........................................................................................13
Young v. Hartford Accident & Indem. Co.,
492 A.2d 1270 (Md. 1985) ......................................................................................................16
Statutes & Rules
18 U.S.C. 1961(1) .......................................................................................................................20
18 U.S.C. 1962(c) ............................................................................................................... passim
42 U.S.C. 1985(3) .................................................................................................................21, 22
Fed. R. Civ. P. 8(a) ..............................................................................................................7, 16, 18
Fed. R. Civ. P. 8(a)(1) ......................................................................................................................7
Fed. R. Civ. P. 9(b) ......................................................................................................16, 17, 18, 20
Fed. R. Civ. P. 12(b)(6)....................................................................................................4, 8, 12, 13
Fed. R. Evid. 201 .....................................................................................................................10, 11
Md. Code Ann., Cts. & Jud. Proc. 5-105 ..................................................................................5, 6
Other Authorities
James Warren, Speedway Bomber Sitting Pretty: Kimberlin, With a Book on the Way, Stumps
for Immigrants Cause, CHICAGO TRIBUNE (Mar. 13, 1994) ...................................................10
Mark Singer, Citizen K: The Deeply Weird American Journey of Brett Kimberlin (Knopf
Doubleday 1996) ......................................................................................................................10


1

PRELIMINARY STATEMENT
Plaintiff Brett Kimberlin (Kimberlin) seeks to recover compensatory, punitive, and
treble damages, as well as various forms of equitable relief, for what is essentially an untimely
and meritless defamation claim. Kimberlin, who is well known for perpetrating the 1978
bombings in Speedway, Indiana, as well as for making the claim that he personally sold
marijuana to Vice President Dan Quayle, is pursuing eight causes of action against numerous
media defendants for supposedly falsely accusing him of committing a series of crimes. For the
reasons explained herein, Kimberlin fails to state any claims against defendants The Blaze, Inc.,
Mercury Radio Arts, and Glenn Beck (collectively the Blaze Defendants).
First, Kimberlins claims of defamation and false light invasion of privacy against two of
the three Blaze Defendants (Kimberlin asserts no claims against Mercury Radio Arts) are
untimely under Marylands one-year statute of limitations. No exceptions apply that would save
Kimberlins claims, and they should therefore be dismissed with prejudice.
Second, Kimberlin asserts no claims whatsoever against defendant Mercury Radio Arts.
Kimberlin lists Mercury Radio Arts in his case caption and once as a defined term, and then
never again. Kimberlins claims therefore fail the most basic pleading standards and cannot rise
above the speculative level as to Mercury Radio Arts.
Third, Kimberlins remaining causes of action should be dismissed for failure to plead
essential elements of those claims. Kimberlin a well-known public figure does not allege
that the Blaze Defendants made any of the purportedly defamatory statements with actual malice,
and even if he had, he could not establish injury to his reputation because he is libel proof.
Furthermore, Kimberlin cannot state a claim for intentional infliction of emotional distress
because the Blaze Defendants purportedly outrageous conduct falls far short of the level of
extremity required to state such a claim under Maryland law. Kimberlin also fails to properly

2

plead a fraud or negligent misrepresentation claim against the Blaze Defendants, much less with
the level of particularity required under the Federal Rule of Civil Procedure. Finally,
Kimberlins outlandish claims under RICO and the Ku Klux Klan Act are patently without merit,
as he does not and cannot establish that the Blaze Defendants engaged in any RICO predicate
act, or that they conspired to violate his civil rights based on some class-based animus.
Thus, even taking all facts as true for purposes of this motion, Kimberlins claims fail in
their entirety against Blaze Defendants. Blaze Defendants therefore respectfully request that the
Court dismiss these claims with prejudice.
FACTUAL BACKGROUND
Accepting as true for purposes of this motion all factual allegations contained in
Kimberlins First Amended Complaint dated October 17, 2013 (which amended the initial
complaint filed two days prior) (the Complaint or Cplt.),
1
the facts of this case are as
follows:
Kimberlin is no stranger to litigation, see, e.g., Cplt. 34, 41, 42, and has had several
prior dealings with legal authorities, including criminal convictions connected to the 1978
bombings in Speedway, Indiana, drug offenses, and perjury incidents of which the Court can
take judicial notice. See Serian v. Penguin Group (USA), Inc., No. 1:08CV74, 2009 WL
2225412, at *5 (N.D. W.Va. July 23, 2009) (taking judicial notice of two additional lawsuits
involving plaintiff and his prior federal felony convictions). The Blaze is a leading media
company that provides news, information, and opinion content to millions of consumers through
television, radio, and Internet programming. Mercury Radio Arts is a multimedia production
company that manages and produces content, products, and events in the publishing, radio,
television, digital, and live events space. Defendant Glenn Beck is a well-known radio and

1
A true and correct copy of the Complaint is attached as Exhibit A to the Declaration of Eleanor M. Lackman.
Case 8:l3-cv-03059-PWG Document 83-l Filed 02/2l/l4 Page l0 of 3l

3

television personality whose programming is produced and distributed through Mercury Radio
Arts and The Blaze. See Cplt. 20, 26, 27.
Kimberlin alleges that the Blaze Defendants, in collaboration with various bloggers,
political commentators, and government officials, conspired to, and did, violate or otherwise
deprive him of his civil rights by creat[ing] false and defamatory narratives stating that
Kimberlin engaged in, ordered, directed and/or facilitated an action that Kimberlin refers to as
swatting. Id. 1. Swatting, according to Kimberlins allegations in the Complaint, is the
calling of the police using a spoofed phone number and telling the police that a major crime
occurred at the address associated with that [phone number] in order to cause a large police
response. Id. 2. Kimberlin claims that several of the individual defendants have alleged to
have been swatted and have conspired to, and did, blame Kimberlin for swatting in online
articles, blog posts, and books, in order to smear him, and abused various positions of power in
order to perpetuate the supposed lie and to give it credibility. See id. 57-106. Yet, notably,
Kimberlin makes only three allegations specifically against the Blaze Defendants: that on or
about May 25, 2012, Glenn Beck provided a platform on his radio/television broadcast for
other defendants to accuse Kimberlin of swatting; that on May 25, 2012, The Blaze published a
single article accusing Kimberlin of swatting conservative bloggers; and, also on May 25, 2012,
that Glenn Beck published an article on his website imputing that Kimberlin swatted
conservative bloggers. Id. 63-65. Plaintiff makes no allegations whatsoever against Mercury
Radio Arts.
Based on these allegations Kimberlin brings eight causes of action against the named
defendants including violation of the Ku Klux Klan Act, the Racketeer Influenced Corrupt
Organizations Act (RICO), fraud, and intentional infliction of emotional distress over the
Case 8:l3-cv-03059-PWG Document 83-l Filed 02/2l/l4 Page ll of 3l

4

course of 213 paragraphs. For the reasons stated below, all of Kimberlins claims fail as to the
Blaze Defendants.
ARGUMENT
In order to survive a motion to dismiss for failure to state a claim pursuant to Federal
Rule 12(b)(6), a plaintiff must plead enough facts to state a claim to relief that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). This plausibility standard
demands the pleading of sufficient factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged, not just an unadorned, the-
defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Thus while the court must accept as true all of the factual allegations contained in the
complaint, Twombly, 550 U.S. at 572 (citations omitted), and draw all reasonable factual
inferences in the plaintiffs favor, Harris v. U.S., 417 F. Appx 285, 287 (4th Cir. 2011), the
factual allegations contained in the complaint must be enough to raise a right to relief above the
speculative level. Twombly, 550 U.S. at 555. Moreover, labels and conclusions, formulaic
recitation[s] of the elements of a cause of action, and naked assertions devoid of further factual
enhancement will not suffice. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678 (internal
citations omitted). For the reasons stated below, Kimberlins Complaint should be dismissed in
its entirety as to the Blaze Defendants because Kimberlins claims are either time barred or
because Kimberlin fails to adequately plead his causes of action, or both.
I. KIMBERLINS CLAIMS FOR DEFAMATION AND FALSE LIGHT INVASION
OF PRIVACY SHOULD BE DISMISSED BECAUSE THEY ARE UNTIMELY

Kimberlins defamation and false light invasion of privacy claims causes of action that
are both legally and factually related should be dismissed with prejudice for failure to comply
with the applicable statute of limitations.

5

A. Kimberlin Filed His Defamation Claims Well Beyond Marylands One-Year
Statute of Limitations

Kimberlin makes three allegations of defamation against Blaze Defendants two against
Glenn Beck and one against The Blaze (and none against Mercury Radio Arts). Cplt. 63-65.
All three claims should be dismissed because they are untimely.
Maryland law provides a one-year statute of limitations for libel and slander actions. Md.
Code Ann., Cts. & Jud. Proc. 5-105; Shepard v. Nabb, 581 A.2d 839, 843 (Md. Ct. Spec. App.
1990). Such claims accrue either the day of publication, or, under the discovery rule, when the
[plaintiff] in fact knew or reasonably should have known of the statement. McClure v.
Lovelace, 78 A.3d 934, 949 (Md. Ct. App. 2013) (citations omitted). Here, any article published
before October 15, 2012 a year prior to the date that the original Complaint was filed would
be barred by the statute of limitations.
Kimberlin alleges that on May 25, 2012, both The Blaze and Glenn Beck published
articles imput[ing] that Kimberlin swatted certain conservative bloggers and commentators,
and that Glenn Beck provided a platform on his radio/television broadcast for other defendants
to accuse Kimberlin of swatting. Cplt. 63-65. Kimberlins October 15, 2013 Complaint
was filed nearly a year and five months after the publication of the allegedly defamatory
statements, and therefore all three of his allegations are untimely.
The only doctrine that could conceivably save Kimberlins claim would be the discovery
rule, but he alleges no facts to plausibly state that this exception would apply. In fact, it could
not apply here given that Kimberlin alleges that all of the complained-of statements were
published in widely available media sources and were accessible on the Internet. [T]he
prevailing view is that libel claims relating to articles published in widely available sources
such as those in the mass media begin to accrue on the date of publication. Tani v. Wash. Post,

6

CIV. PJM 08-1130, 2009 WL 8652384, at *2 (D. Md. June 18, 2009) (plaintiff was not permitted
to invoke discovery rule as to articles published on the Internet over two years prior to the filing
of the complaint) (collecting cases). Moreover, where articles were widely available online and
could have been discovered immediately, the statute of limitations beg[ins] to accrue on the date
the articles were published. Id. Kimberlin does not plead any facts tending to show that he
could not have previously discovered the articles, which were all alleged to be published online.
Id. Accordingly, the discovery rule would not save Kimberlins otherwise untimely causes of
action, and his defamation claims should be dismissed with prejudice as to the Blaze Defendants.
B. The Same Statute of Limitations Applies to False Light Invasion of Privacy,
Rendering Kimberlins Claim Similarly Untimely

Under Maryland law, the one-year statute of limitations governing libel and slander is
also applicable to causes of action based on a false light theory of invasion of privacy, given
the similarity between the defamation and false light invasion of privacy causes of action. See
Md. Code, Ann. Cts. and Jud. Proc., 5-105; Smith v. Esquire, Inc., 494 F. Supp. 967 (D. Md.
1980). For the same reasons that Kimberlins defamation claims against Blaze Defendants
should be dismissed with prejudice as untimely, so too should his claim for false light invasion
of privacy because, as discussed further below, the same alleged conduct that forms the basis of
Kimberlins defamation claim would form the basis of his false light invasion of privacy claim.
II. KIMBERLIN FAILS TO STATE ANY CLAIMS WHATSOEVER AGAINST
MERCURY RADIO ARTS

While Kimberlin names Mercury Radio Arts as a defendant in the caption of the
Complaint and mentions Mercury Radio Arts in paragraph 24 for definitional purposes,
Kimberlins reference to Mercury Radio Arts ends there. Kimberlin makes no specific

7

allegations as to Mercury Radio Arts indeed, he makes no allegations at all and therefore his
Complaint fails in its entirety as to Mercury Radio Arts under Federal Rule of Civil Procedure 8.
Federal Rule 8 requires that, in order to state a claim for relief, a pleading must contain a
short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ.
P. 8(a)(1). The required short and plain statement must provide fair notice of what the . . .
claim is and the grounds upon which it rests. Twombly, 550 U.S. at 545; see also Anderson v.
Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007). Although the Rule 8 pleading standard is
generally considered to be a low hurdle, Kimberlins failure to articulate any claims at all against
Mercury Radio Arts is plainly insufficient under the Federal Rules. Cf. White v. Ocean Duchess
Inc., No. 2:07CV300, 2007 WL 4874709, at *5 (E.D. Va. Nov. 7, 2007) (Even under the
relaxed pleading requirements of Rule 8, plaintiffs fail to allege facts sufficient to state a claim
for intentional infliction of emotional distress.).
Indeed, a complaint [will not] suffice if it tenders naked assertions devoid of further
factual enhancements. Iqbal, 556 U.S. at 678 (internal quotation marks and alteration omitted).
See also Jones v. Clawson, CA 5:11-1533-RBH-KDW, 2012 WL 3096048 (D.S.C. July 17,
2012), report and recommendation adopted, 5:11-CV-01533-RBH, 2012 WL 3079160 (D.S.C.
July 30, 2012) (recommending dismissal because the complaint does not comport with the
requirements of Rule 8 of the Federal Rules of Civil Procedure in that [it] fails to mention
Defendant Merrill in the body of that document, much less assert any specific claim against this
Defendant); Informatics Applications Group, Inc. v. Shkolnikov, 1:11CV726 JCC/JFA, 2011
WL 4804870, at *6 n.6 (E.D. Va. Oct. 11, 2011) (plaintiff TIAG likewise neglects to allege
facts demonstrating that [defendant] KEYnetik is implicated in its Section 256 claim). Because
Kimberlins Complaint does not contain any factual matter as to Mercury Radio Arts, much

8

less sufficient facts to state a plausible claim against Mercury Radio Arts, the Complaint should
be dismissed in its entirety. Iqbal, 556 U.S. at 677; see also Monroe v. City of Charlottesville,
579 F.3d 380, 386 (4th Cir. 2009).
III. PLAINTIFFS CLAIMS AGAINST THE OTHER BLAZE DEFENDANTS
SHOULD ALL BE DISMISSED FOR FAILURE TO STATE A CAUSE OF
ACTION UNDER RULE 12(B)(6)

Each of Kimberlins claims against the other Blaze Defendants should be dismissed for
failure to plead and/or satisfy some or all of the necessary elements of those causes of action.
For the following reasons, this Court should dismiss Kimberlins Complaint in its entirety, with
prejudice, as to the Blaze Defendants.
A. Kimberlin Fails to State a Claim for Defamation Against the Other Blaze
Defendants
Even if Kimberlins defamation claim were timely it would warrant dismissal for failure
to state a claim under Rule 12(b)(6). Kimberlin fails to plead and cannot establish essential
elements of this cause of action.
In order to plead a defamation claim in Maryland, a plaintiff must allege specific facts
establishing (1) that defendant made a defamatory statement to a third person, (2) that the
statement was false, (3) that defendant was legally at fault in making the statement, and (4) that
the plaintiff thereby suffered harm. Nanji v. Nat'l Geographic Soc., 403 F. Supp. 2d 425, 430-
31 (D. Md. 2005) (dismissing plaintiffs defamation claim against magazine publisher for failure
to state a claim) (quoting Rosenberg v. Helinksi, 328 Md. 664, 665616 A.2d 866, 871 (1992)).
As noted above, Kimberlin makes a total of three allegations directed toward any of the
Blaze Defendants two against Glenn Beck, and one against The Blaze. Cplt. 63-65.
Kimberlins first allegation against Glenn Beck accuses Mr. Beck of provid[ing] a platform on
his radio/television broadcast for Defendants Walker and Frey to accuse Kimberlin of swatting.

9

Id. 63. Kimberlins allegation against Mr. Beck fails on the very first element of a defamation
claim: that the defendant made a defamatory statement. Kimberlin accuses Mr. Beck of
provid[ing] a platform for several other defendants to make accusations about Kimberlins
actions, not for making any actual defamatory statement, himself. Kimberlin is essentially
arguing that Mr. Beck engaged in some sort of contributory or vicarious defamation. However,
the Blaze Defendants have not found any authority that allows for secondary liability for
defamation, and as such, this particular allegation should be given no weight and should be
summarily dismissed.
Kimberlins remaining allegation is that Glenn Beck and The Blaze, through articles
published on the Internet, imputed that Kimberlin swatted certain conservative bloggers. Id.
64-65. Even assuming the Blaze Defendants made false and defamatory statements which
the Blaze Defendants deny Kimberlins claim still falters on the third element of a defamation
claim: legal fault. Because Kimberlin is a public figure, he therefore must establish that the
Blaze Defendants statements were made with actual malice a standard that he does not satisfy.
See Wells v. Liddy, 186 F.3d 505 (4th Cir. 1999).
A public figure is anyone who is famous or infamous because of who he is or what he
has done, Time, Inc. v. Johnston, 448 F.2d 378, 380 (4th Cir. 1971) (internal citations omitted),
including one that thrust[s] [himself] to the forefront of particular public controversies in order
to influence the resolution of the issues involved. Fitzgerald v. Penthouse Intl, 525 F. Supp.
585, 589 (D. Md. 1981) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 333, 345 (1974)). One
may be deemed a general-purpose public figure by achieving such pervasive fame or
notoriety in the community that he becomes a public figure for all purposes and in all

10

contexts. Foretich v. Capital Cities/ABC, Inc. 37 F.3d 1541, 1551-52 (4th Cir. 1994); Gertz,
418 U.S. at 351-52.
Here, Kimberlin is undoubtedly a general-purpose public figure. Cf. Leopold v. Levin, 45
Ill. 2d 434, 259 N.E.2d 250 (1970) (commission of notorious crime caused plaintiff to be a
public figure for right-of-privacy purposes). He was the perpetrator of the series of bombings
that occurred in Speedway, Indiana in 1978.
2
See Kimberlin v. White, 7 F.3d 527, 528-29 (6th
Cir. 1993). Kimberlin has continued to assume prominence in the public eye, earning numerous
charges and convictions for various crimes
3
and garnering widespread media attention related
thereto. His criminal activity over the past three decades was even the subject of a book about
him. See Mark Singer, Citizen K: The Deeply Weird American Journey of Brett Kimberlin
(Knopf Doubleday 1996). Indeed, Kimberlin has further entrenched himself in public
controversies by claiming to have sold marijuana to former Vice President Dan Quayle and
seeking to tell his story at a jailhouse press conference, see Kimberlin v. Quinlan, 6 F.3d 789,
791 (D.C. Cir. 1993), Citizen K, supra at 117-19; and by otherwise appearing before the press
and by lobbying for political causes before Congress. James Warren, Speedway Bomber
Sitting Pretty: Kimberlin, With a Book on the Way, Stumps for Immigrants Cause, CHICAGO
TRIBUNE (Mar. 13, 1994), available at http://articles.chicagotribune.com/1994-03-

2
The 1978 Speedway Bombing is a well-known and undisputed historical event of which the Court can take judicial
notice. See Fed. R. Evid. 201 (courts are authorized to take judicial notice of factual matters which are common
knowledge and about which reasonable people would agree); U.S. v. Brehm, 691 F.3d 547, 554 n.8 (4th Cir. 2012)
(court may judicially notice a public act or proclamation comprising historical and notorious facts); The Austvard,
34 F. Supp. 431, 437 (D. Md. 1940) (courts can take judicial notice of existing world conditions about which there
can be no dispute).
3
Kimberlins criminal charges and convictions include conspiracy to possess marijuana with intent to distribute,
U.S. v. Kimberlin, 692 F.2d 760 (7th Cir. 1982), false impersonation of a Department of Defense police officer, U.S.
v. Kimberlin, 781 F.2d 1247 (7th Cir. 1985), and perjury, U.S. v. Kimberlin, 805 F.2d 210 (7th Cir. 1986). The
Court may also take judicial notice of the foregoing charges and convictions because court records are not subject to
reasonable dispute. See U.S. v. Kane, 434 F. Appx 175, 176 (4th Cir. 2011) (taking judicial notice of the indictment
charging the defendant with burglaries).

11

13/features/9403130267_1_brett-kimberlin-prison-convicted (last accessed Feb. 13, 2014) (a true
and correct copy of which is attached as Exhibit B to the Declaration of Eleanor M. Lackman).
4

As a result of his pervasive reputation, Kimberlin is a general purpose public figure and
therefore must plead that the Blaze Defendants published the alleged defamatory statements with
the higher standard of actual malice. Hatfill v. The N.Y. Times Co., 532 F.3d 312, 315 (4th Cir.
2008); Valencia v. Drezhlo, No. RDB-12-00237, 2012 WL 6562764 (D. Md. Dec. 13, 2012)
(granting defendants motion to dismiss defamation claim because plaintiff merely made
conclusory statements as to defendants actual malice).
5
Actual malice means that the defendant
made the allegedly defamatory statements with knowledge of their falsity or reckless disregard
for their falsity, Wells, 186 F.3d at 542 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 27980
(1964)), and requires more than mere negligence the Defendant must have a subjective
awareness of probable falsity of the statement. Hatfill, 532 F.3d at 317 (quoting Gertz, 418
U.S. at 335 n.6)). See also Nanji, 403 F. Supp. 2d at 434 & n.6 (granting motion to dismiss
defamation claim because, inter alia, plaintiff failed to plead that defendant acted with actual
malice).
Kimberlin pleads no facts indicating that the Blaze Defendants allegedly defamatory
statements were made with actual malice. At most, he offers a bare legal assertion that
Defendants actions against Kimberlin were willful, wanton and malicious. Cplt. 194.
However, he puts forth no facts to support these allegations, and mere mention of the term
malicious is plainly insufficient to establish actual malice; indeed, even recitation of the proper

4
The Court may also take judicial notice of the above-cited book and newspaper article. See Fed. R. Evid. 201.
See, e.g., Redmond v. Black & Decker Med. Plan, Civil No. CCB-04-1973, 2006 WL 1892420, at *1 n.1 (D. Md.
June 15, 2006) (taking judicial notice of a newspaper article noting that plaintiff failed to appear in state court on the
day of a hearing).
5
Even if Kimberlin were not considered a public figure, he would at very least need to establish actual malice in
order to obtain punitive damages. See Wells, 186 F.3d at 542. For the reasons discussed below, he cannot meet this
standard.

12

standard for actual malice alone is insufficient. See Mayfield v. NASCAR, 674 F.3d 369, 377-78
(4th Cir. 2012) (defamation 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
because a mere recitation of the legal standard [] is precisely the sort of allegations that
Twombly and Iqbal rejected). The Complaint by far misses the mark in stating actual malice for
purposes of pleading a cause of action for defamation, and Kimberlin has no basis beyond pure
conjecture to allege that the Blaze Defendants made any statements with actual malice.
Finally, and although the Court need not even reach the issue of Kimberlins status as a
libel-proof plaintiff, it is clear that Kimberlin cannot properly allege that he suffered
reputational harm as a result of the Blaze Defendants allegedly defamatory publication.
Kimberlins reputation is so tarnished by his widely known and extensive criminal history that it
is implausible that he somehow was further injured by any allegedly false statement; he is the
quintessential defamation-proof plaintiff. See Logan v. District of Columbia, 447 F. Supp.
1328, 1336 (D.D.C. 1978) (finding plaintiff was libel-proof where plaintiff had an extensive
criminal record). While the Fourth Circuit has not yet opined on the defamation-proof plaintiff
doctrine, Kimberlin represents a textbook example of how that doctrine is defined and applied by
other courts because he is 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. Cardillo v.
Doubleday & Co., 518 F.2d 638, 639 (2d Cir. 1975). See also Brenner v. Greenberg, 08 C 826,
2010 WL 4719694, at *4 (N.D. Ill. Nov. 15, 2010) (finding plaintiff was defamation-proof
where plaintiff had been convicted for deceptive practices, theft by deception, assault, and was

13

banned from trading for life); Wynberg v. Natl Enquirer, Inc., 564 F. Supp. 924, 927 (C.D. Cal.
1982) (finding plaintiffs past conduct and criminal convictions rendered him libel proof).
The Blaze Defendants should not be required to fend off a defamation claim brought by a
clearly defamation-proof plaintiff, and for this reason as well as the others discussed above,
Kimberlins claim should be dismissed with prejudice. See Logan, 447 F. Supp. at 1336.
B. Kimberlins Claim for False Light Invasion of Privacy Fails for the Same
Reasons His Defamation Claim Fails

Even if Kimberlins false light invasion of privacy claim was timely, it would fail under
Rule 12(b)(6) because it is tied to his defamation claim.
This Court has held that a false light invasion of privacy claim may not stand unless the
claim also meets the standards for defamation. Ross v. Cecil County Dept of Soc. Servs., 878
F. Supp. 2d 606, 624 (D. Md. 2012) (internal citations omitted). Here, Kimberlin fails to state a
claim for defamation for the reasons discussed above. Accordingly, Kimberlin inherently fails to
plead a claim for false light, and his claim should therefore be dismissed. Because an allegation
of false light invasion of privacy must meet the same legal standards as an allegation of
defamation and, it need not be addressed separately from defamation. Piscatelli v. Van Smith,
424 Md. 294, 35 A.3d 1140 (2012). However, for the sake of clarity, the Blaze Defendants
emphasize that Kimberlin has failed to plead a false light invasion of privacy claim, and
therefore his claim would fail anyway.
To state a claim for false light invasion of privacy, a plaintiff must prove (1) that the
defendant gave publicity to a matter concerning another that places the other before the public
in a false light, (2) that the false light in which the other person was placed would be highly
offensive to a reasonable person, and (3) that the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the false light in which the other would be
Case 8:l3-cv-03059-PWG Document 83-l Filed 02/2l/l4 Page 2l of 3l

14

placed. Bagwell v. Peninsula Regl Med. Ctr., 665 A.2d 297, 318 (Md. Ct. App. 1995).
Kimberlin offers only a bare recitation of the elements of false light against collective
Defendants without any specific factual allegations to support his claim against the Blaze
Defendants, specifically. See Cplt. 196-207. Even assuming that Kimberlin established the
first two prongs which the Blaze Defendants dispute he has failed to allege that the Blaze
Defendants had knowledge or acted with reckless disregard of the purported falsity of their
accusations that Kimberlin engaged in swatting. As discussed above, Kimberlin makes a total of
three allegations against Blaze Defendants, see id. 63-65, none of which sufficiently plead
or could plead beyond rank speculation any of the Blaze Defendants purported state of mind.
For all of these reasons, Kimberlins false light invasion of privacy claim against the
Blaze Defendants should be dismissed with prejudice.
C. Kimberlin Fails to State a Claim for Intentional Infliction of Emotional
Distress Because The Blaze Defendants Actions Were Not Sufficiently
Extreme and Outrageous

Kimberlin fails to state a claim for intentional infliction of emotional distress (IIED)
because the purportedly defamatory statements at issue here do not fall on the spectrum of
outrageous conduct necessary to sustain such a claim.
In Maryland, to establish a cause of action for IIED, a plaintiff must plead four essential
elements: (1) the conduct in question was intentional or reckless; (2) the conduct was extreme
and outrageous; (3) there was a causal connection between the conduct and the emotional
distress; and (4) the emotional distress was severe. Kearns v. Northrop Grumman Sys. Corp.,
CIV. A. ELH-11-1736, 2012 WL 1183017 (D. Md. Apr. 6, 2012) (granting defendants motion
to dismiss IIED claim because plaintiff failed to plead each of the elements with specificity)
(internal citations omitted). Whether the conduct complained of meets this test is, in the first

15

instance, for the court to determine; 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.
Harris, 380 A.2d at 615. Maryland courts warn that the tort of intentional infliction of
emotional distress is rarely viable, and is to be used sparingly . . . . Bagwell, 665 A.2d at 319.
Kimberlins IIED claim, at very least, fails on the second element.
6
Under Maryland law,
the Blaze Defendants purported conduct, as described by Kimberlin, is not considered extreme
and outrageous for purposes of establishing IIED. In order for conduct to meet the test of
outrageousness, it must be 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.
Harris, 380 A.3d at 614 (quoting Restatement (Second) of Torts 46 comment d (1965)).
Specifically, courts routinely deny IIED claims that arise out of purportedly defamatory
statements,
7
see, e.g., Batson v. Shiflett, 602 A.2d 1191, 1217 (Md. 1992), and a claim for IIED
will not lie even when a defendant acts with malice or criminal intent in making such a
statement.
8
See id. at 1217; Sirpal v. Fengrong Wang, CIV. WDQ-12-0365, 2012 WL 2880565,
at *4 (D. Md. July 12, 2012) (Defamatory conduct in no way satisfies [the] exacting standard
for extreme and outrageous conduct.) (internal citations omitted).
Even purportedly defamatory allegations that a plaintiff was involved in criminal activity
are insufficient to rise to the level of extreme conduct necessary to state a claim for IIED.
[S]trategically designed [speech], even speech that may be intended and calculated to
harass the plaintiff by accusing him of crimes is not extreme and outrageous. Sirpal, 2012 WL
2880565, at *4. In Sirpal, this court dismissed an IIED claim by a graduate student brought

6
The Blaze Defendants also believe that Kimberlins claim would fail on the first, third, and fourth elements, but
need not address those elements here given how clearly Kimberlins claim fails on the extreme and outrageous
prong.
7
The Blaze Defendants do not concede that their statements were defamatory.
8
The Blaze DeIendants do not concede that the alleged statements were made with any degree oI malice or intent.

16

against a classmate who accused the plaintiff of various forms of abuse. The court granted the
defendants motion to dismiss, holding that the defendants accusations of dishonest, abusive,
and criminal conduct . . . though reprehensible, does not state an IIED claim. Id. This case is
no different. Kimberlin merely alleges that the Blaze Defendants made public statements
accusing Kimberlin of illegally swatting conservative media personalities. See Cplt. 63-65.
Such accusations are simply insufficient to state a claim for IIED.
Claims for IIED are properly limited to situations far more outrageous than the ones
Kimberlin alleges in his Complaint. See, e.g., Figueiredo-Torres v. Nickel, 5321 Md. 642, 84
A.2d 69 (1991) (psychologist had sexual relations with the plaintiffs wife during the time when
he was treating the couple as their marriage counselor); B.N. v. K.K., 312 Md. 135, 538 A.2d
1175 (1988) (physician did not tell nurse with whom he had sexual intercourse that he had
herpes); Young v. Hartford Accident & Indem. Co., 303 Md. 182, 492 A.2d 1270 (1985)
(workers compensation insurers sole purpose in insisting that claimant submit to psychiatric
examination was to harass her and force her to abandon her claim or to commit suicide).
For all these reasons, this court should dismiss Kimberlins claim for IIED with
prejudice.
D. Kimberlin Cannot Maintain a Claim for Fraud or Negligent
Misrepresentation Because His Pleadings Are Insufficient Under the Federal
Rules of Civil Procedure

Kimberlins fraud and negligent misrepresentation claims should be dismissed because
his Complaint fails to plead fraud with the particularity required by Federal Rule 9(b), and fails
to plead negligent misrepresentation under Federal Rule 8(a). Kimberlin mentions two of the
Blaze Defendants in passing and then conclusorily subsumes them with the other parties to this

17

action by inappropriate collective pleading of clearly inapplicable claims that simply cannot arise
from the ascertainable facts stated as to the Blaze Defendants.
1. Kimberlins Fraud Claim Lacks Sufficient Particularity under Rule 9(b)
Kimberlins fraud claim should be dismissed because it is speculative and does not meet
the heightened pleading requirements set forth in Federal Rule 9(b). See U.S. ex rel. Brooks v.
Lockheed Martin Corp., 423 F. Supp. 2d 522, 526 (D. Md. 2006) aff'd in part, dismissed in part,
237 F. Appx 802 (4th Cir. 2007).
An essential element of a fraud claim is that the defendant made a false statement of
fact with knowledge of or reckless disregard for its falsity. Marchese v. JPMorgan Chase
Bank, N.A., 917 F. Supp. 2d 452, 465 (D. Md. 2013) (internal citations omitted). Federal Rule
9(b) requires that a party alleging fraud or mistake . . . state with particularity the circumstances
constituting fraud or mistake. Fed. R. Civ. P. 9(b). See also Iron Workers Local 16 Pension
Fund v. Hilb Rogal & Hobbs Co., 432 F. Supp. 2d 571, 594-95 (E.D. Va. 2006) (A Complaint
must plead with particularity the time, place, speaker, and contents of the allegedly false
statements.). This particularity requirement mandates that at a minimum for each alleged
misstatement or omission, a plaintiff must plead specific facts concerning, for example, when
each defendant or other corporate officer learned that a statement was false, how that defendant
learned that the statement was false, and the particular document or other source of information
from which the defendant came to know that the statement was false. Hilb Rogal & Hobbs
Co., 432 F. Supp. 2d at 594.
Kimberlins claim necessarily fails as to the Blaze Defendants for two reasons. First,
Kimberlin fails to plead the time, place, speaker, and contents of any allegedly fraudulent acts or
statements by the Blaze Defendants. See Glaser v. Enzo Biochem, Inc., 303 F. Supp. 2d 724, 734
(E.D. Va. 2003), affd in part and rev'd in part on other grounds, 126 Fed. Appx 593, 601 (4th

18

Cir. 2005). In fact, all of Kimberlins allegations concerning fraud relate to the supposed
statements and actions of other defendants and have no plausible connection at all to the Blaze
Defendants.
Second, Kimberlin impermissibly relies on group pleading to drag all collective
defendants into his fraud allegations. See Cplt. 169-75. Grouping defendants together
without specifically alleging which defendant was responsible for which act or statement is
improper and cannot overcome the strictures of Federal Rule 9(b). See Juntti v. Prudential-
Bache Sec., Inc., Civ. No. 92-2066, 1993 WL 138523, at *2 (4th Cir. Mar. 4, 1993); Apple v.
PrudentialBache Sec., Inc., 820 F. Supp. 984, 987 (W.D.N.C. 1992) (By using common
allegations to imply that each defendant is responsible for the statements and actions of the
others, plaintiffs are not in compliance with Rule 9(b), which requires that a Complaint set forth
with particularity each defendant's culpable conduct.). The Fourth Circuit has clearly stated that
[s]uch [group] pleading practice is insufficient. . . . The burden rests on plaintiffs to enable a
particular defendant to determine with what it is charged. In re Cree, Inc. Sec. Litig., 333 F.
Supp. 2d 461, 475 (M.D.N.C. 2004) (citing Juntti, 1993 WL 138523, at *2) (internal quotation
marks omitted). Thus, Kimberlins fraud claim is insufficient and warrants dismissal with
prejudice.
2. Kimberlin Fails to State a Plausible Claim for Negligent Misrepresentation
While the Fourth Circuit has not yet opined on whether a claim for negligent
misrepresentation must be pled with particularity under Federal Rule 9(b), see Bartlett v.
Frederick County, Md., 246 F. Appx 201, 208 (4th Cir. 2007) (Williams, C.J., dissenting),
Kimberlins claim would fail even under the lenient pleading standards of Federal Rule 8(a).
The first key element of a negligent misrepresentation claim is that the defendant, owing a duty

19

of care to the plaintiff, negligently asserts a false statement. Atl. Forest Prods. LLC v. Wm. M.
Young Co. LLC, CIV.A. RDB-11-0241, 2011 WL 6351851, at *4 (D. Md. Dec. 19, 2011)
(internal citations omitted). Kimberlin does not even plead this element with regard to the Blaze
Defendants.
The extent of Kimberlins defective negligent misrepresentation claim is to title his
Fourth Claim for Relief as Fraud and Negligent Misrepresentation and to say that the
Defendants knowingly or negligently failed to disclose material and truthful facts regarding the
swattings. Cplt. 170 (emphasis added). Kimberlin makes no other allegations specific to
negligence or negligent misrepresentation including a duty of care owed by defendant to
plaintiff much less any allegations specific to Blaze Defendants. In re Medimmune, Inc. Sec.
Litig., 873 F. Supp. 953, 969 (D. Md. 1995). The essentials of a negligent misrepresentation
claim are simply absent from the Complaint, and as noted above, Kimberlin cannot rely on
collectively pleading his claims against all Defendants.
Accordingly, the Court should dismiss Kimberlins negligent misrepresentation claim
with prejudice because he cannot state a plausible cause of action beyond mere speculation. .
Twombly, 550 U.S. at 555-56.
E. Kimberlin Fails to State a RICO Claim Because Kimberlin Does Not Plead
Any Valid Predicate Act of Racketeering Against the Blaze Defendants

Kimberlins claim for violation of the Federal Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. 1962(c), should be dismissed with prejudice because
Kimberlin does not and cannot allege that the Blaze Defendants engaged in a predicate act of
racketeering activity required to state a claim under RICO. The Blaze Defendants are alleged,
at best, to have published an article and provided a forum for others to make a statement about
Kimberlin, and these actions are not predicate acts of racketeering activity under RICO.

20

To state a RICO claim, a plaintiff must allege (1) conduct; (2) of an enterprise; (3)
through a pattern; (4) of racketeering activity. Grant v. Shapiro & Burson, LLP, 871 F. Supp. 2d
462, 472-73 (D. Md. 2012) (granting defendants motion to dismiss RICO claim because
plaintiffs sparse allegations wholly fail[ed] to satisfy these requirements). Section 1961(1)
sets forth an enumerated, exhaustive list of predicate acts which may constitute racketeering
activity. See 18 U.S.C. 1961(1), Profls, Inc. v. Berry, 923 F.2d 849 (4th Cir. 1991)
([S]ection 1961 alone enumerates all conduct which may constitute racketeering activity.).
The publication of statements about swatting is not one of those acts. Moreover, when the
predicate acts in a RICO Complaint sound in fraud (such as mail fraud and wire fraud) the
pleading standards of Federal Rule 9(b) apply. See Kerby v. Mortgage Funding Corp., 992 F.
Supp. 787, 799 (D. Md. 1998); Proctor v. Metro. Money Store Corp., 645 F. Supp. 2d 464, 473
(D. Md. 2009).
Kimberlin makes conclusory mention of a number of the enumerated predicate acts, such
as wire fraud and mail fraud, against collective Defendants, see Cplt. 121-30, but fails to
make any specific allegations concerning these offenses against the Blaze Defendants. Indeed,
Kimberlin does not make any factual allegations against Blaze Defendants relevant to these
predicate acts or, for that matter, any of the other non-fraud-based predicate acts listed in the
Complaint much less those specific statements required by Rule 9(b). For the same reasons
that Kimberlins fraud claim failed, Kimberlin does not meet the heightened pleading
requirements set forth in Fed. R. Civ. P. 9(b) for purposes of RICO.
Furthermore, to the extent that Kimberlin attempts to state a RICO claim against the
Blaze Defendants by way of his tort claims, his RICO claim should be dismissed. The
enumerated list of predicate racketeering activities does not include tort claims such as

21

defamation, common law fraud, and intentional infliction of emotional distress; accordingly,
these claims cannot form the basis of a RICO claim. See Kimm v. Chang Hoon Lee, No. 04 Civ.
5724, 2005 WL 89386, at *4-5 (S.D.N.Y. Jan. 13, 2005), affd, 196 F. Appx 14 (2d Cir. 2006)
(noting that it is firmly established that a plaintiffs tort claims are not predicate acts under
RICO). Therefore, even if Kimberlin did properly assert the aforementioned tort claims against
the Blaze Defendants, he still could not state a RICO claim against them. For these reasons, the
Court should dismiss Kimberlins RICO claim against the Blaze Defendants with prejudice.
F. Kimberlins Claim under the Ku Klux Klan Act Should Be Dismissed
Because Kimberlin Does Not, and Could Not, Plausibly Assert Any Class-
Based Bias by the Blaze Defendants

Kimberlin fails to state a claim under 42 U.S.C. 1985(3) because he does not plead a
necessary element of such a cause of action, nor could he. In order to state a claim for a
violation of 1985(3), a plaintiff must show, inter alia, (1) that some racial, or perhaps
otherwise class-based, invidiously discriminatory animus lay behind the conspirators action, and
(2) that the conspiracy aimed at interfering with rights that are protected against private, as well
as official, encroachment. Bray v. Alexandria Womens Health Clinic, 506 U.S. 263, 268
(1993) (internal citations omitted). Kimberlins claim fails under the first element and therefore
fails completely.
Nowhere in Kimberlins Complaint does he allege that the purported conspiracy to
violate his Constitutional rights was based on a racial or class-based discriminatory animus,
which was the purpose behind the Ku Klux Klan act at its inception. See Weaver v. Torres, No.
Civ. A. WMN-00-1126, 2000 WL 1721344, at *1 (D. Md. Nov. 17, 2000) (The passage of the
[Ku Klux Klan] Act, in 1871, was in response to widespread violence and acts of terror directed
at blacks and their supporters in the post civil war South.); United Bhd. of Carpenters v. Scott,

22

463 U.S. 825, 836 (1983) (Supreme Court held that the original object of 1985(3) was the
protection of African Americans and their supporters in the South). The inquiry under the statute
should stop there Kimberlin simply has not pled an essential element of the statute, nor could
he.
To the extent Kimberlin is relying upon his political views as a basis for protection under
1985(3) which he does not specifically assert his claim would similarly fail
notwithstanding his inadequate pleading. The Fourth Circuit, in keeping with the Supreme
Courts decision in Scott, has narrowly interpreted what constitutes a protected class under the
statute, and has accordingly held that there is little support for the contention that 1985(3)
includes in its scope of protection the victims of purely political conspiracies. Harrison v.
KVAT Foods Mgmt., Inc., 766 F.2d 155, 161 (4th Cir. 1985). Indeed, no class other than
African-Americans has achieved similar status under 1985(3) to assert a private claim of
conspiracy under the statute. Id. Accordingly, Kimberlins political affiliation is not a protected
class for purposes of the Ku Klux Klan Act, and his claim should be dismissed with prejudice.
G. Kimberlins Claim for Punitive Damages Is Inappropriate Because Punitive
Damages Is a Remedy, Not a Cause of Action

Kimberlin appears to try to state a claim for punitive damages. See Cplt. 213.
However, it is well settled that damages are a form of relief, not a cause of action. See Franklin
v. Gwinnett County Pub. Sch., 503 U.S. 60, 69 (1992); Williams v. Walsh, 558 F.2d 667, 670-71
(2d Cir. 1977) ([M]ost definitely, the cause of action is something distinct from the remedy or
relief sought.). The rigid analytical distinction between the question whether a litigant has a
cause of action and what relief, if any, a litigant may be entitled to receive necessitates
dismissal where the plaintiff incorrectly confounds the remedy with the cause of action. Davis v.
Passman, 442 U.S. 228, 239 (1979).

23

It is obvious from Kimberlins one-paragraph request for punitive damages that
Kimberlin mischaracterizes punitive damages, a remedy, as a cause of action and, as such, has
not stated any claim sufficient to withstand a motion to dismiss.
CONCLUSION
For the reasons discussed above, Kimberlins Complaint should be dismissed in its
entirety with regard to the Blaze Defendants because his claims are untimely, inadequately pled,
and/or lacking in any substantive basis.

Dated: New York, New York Respectfully submitted,
February 21, 2014

COWAN DeBAETS ABRAHAMS
& SHEPPARD, LLP

By:__/s/ Eleanor M. Lackman .
Eleanor M. Lackman (pro hac vice)
41 Madison Avenue, 34
th
Floor
New York, New York 10010
Tel: (212) 974-7474
Fax: (212) 974-8474
ELackman@cdas.com

Attorneys for defendants The Blaze, Inc.,
Mercury Radio Arts, and Glenn Beck

Case 8:l3-cv-03059-PWG Document 83-l Filed 02/2l/l4 Page 3l of 3l

DECLARATION OF ELEANOR M. LACKMAN

I, ELEANOR M. LACKMAN, declare as follows:
1. I am a partner at the law firm of Cowan, DeBaets, Abrahams & Sheppard LLP,
attorneys for defendants The Blaze, Inc., Mercury Radio Arts, and Glenn Beck (collectively, the
Blaze Defendants) in the above-captioned matter, and make this declaration in support of the
Blaze Defendants Motion to Dismiss. I have personal, firsthand knowledge of the facts stated in
this declaration. If called as a witness, I could and would competently testify thereto.
2. Attached hereto as Exhibit A is a true and correct copy of the First Amended
Complaint for Damages.
3. Attached here to as Exhibit B is a true and correct copy of the newspaper article
Speedway Bomber Sitting Pretty: Kimberlin, With a Book on the Way, Stumps for Immigrants
Cause, CHICAGO TRIBUNE (Mar. 13, 1994) by James Warren, available at
http://articles.chicagotribune.com/1994-03-13/features/9403130267_1_brett-kimberlin-prison-
convicted (last accessed Feb. 13, 2014).

BRETT KIMBERLIN,

Plaintiff,

v.


Defendants.


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EXHIBIT A
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EXHIBIT B
2/19/2014 `Speedway Bomber' Sitting Pretty - Chicago Tribune
http://articles.chicagotribune.com/1994-03-13/features/9403130267_1_brett-kimberlin-prison-convicted 1/5
LIFESTYLES
Home > Featured Articles
SUNDAY WATCH.
`Speedway Bomber' Sitting Pretty
Kimberlin, With A Book On The Way, Stumps For Immigrant's Cause
March 13, 1994 | By James Warren.
WASHINGTON "So, Jimmy, how are 'ya?" said the flat Midwestern voice on the phone last
week.
In the past 15 or so years, there are just three people who've regularly called me Jimmy: My
mother, colleague Mike Royko, and Brett Kimberlin, convicted drug smuggler, perjurer and
bomber.
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searches. Peace of mind.
This was Kimberlin, a middle-class kid from Indianapolis who drove Dan Quayle slightly nuts,
by alleging from prison that Quayle had once bought drugs from him. When the inmate planned
a press conference to expand on the claims just a few days before the 1988 presidential election,
he found himself placed in isolation, and thus censored, due to what was later shown to be
overzealous intervention by the then-boss of the Bureau of Prisons.
Kimberlin was behind bars because in 1981, after being convicted on lesser charges in two earlier
trials, he was convicted for a series of 1978 bombings around the Indianapolis Speedway, one of
which tore off most of a man's leg.
He subsequently kept regional phone companies and AT&T in business via jailhouse lawyering
that included incessant contact with reporters, including myself. (When we finally met last week,
I had to ask if prison pay phones now had call-waiting.)
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The issues he raised ranged from aspects of his own trial-certain prosecution testimony was
elicited, unusually, under hypnosis-to claims of marijuana sales to then-law student Quayle. The
latter inspired attention in Garry Trudeau's "Doonesbury" strip and vigorous Quayle denials.
Kimberlin was released from prison on parole in November and is living in Maryland with his
mother. The son of a lawyer, he's working on a book (with a nice advance and a writer from the
esteemed New Yorker magazine, no less), tooling around in a sleek Mercedes-Benz and largely
focused on a new legal cause, even as he presses his own litigation against former Prisons
Director J. Michael Quinlan and then-Quinlan spokesman Loye Miller, an undistinguished
former Chicago Sun-Times reporter.
That crusade, which has enlisted the support of several big-ticket attorneys and has included
Kimberlin lobbying Sen. Paul Simon (D-Ill.) and others, stems from his prison friendship with
David Sushansky, an emigre from the former Soviet Union who was convicted of heroin
possession.
Sushansky is caught in what appears to be a criminal justice nightmare. When his prison term
was over, his country refused to take him back due to the conviction. But he's stuck in an
Immigration and Naturalization Service camp in Louisiana because the INS won't let him go
due to his conviction. Conceivably, he could be in INS detention forever.
There may be more than 100 other immigrant felons in similar straits-stuck in U.S. prisons
because their homelands won't allow them back and we won't release them into the U.S.
population. Even though they've completed their prison terms, they are trapped by a provision of
our immigration laws pertaining to "non-releasable aggravated felons."
Kimberlin has been lobbying on Capitol Hill. "If this doesn't work, I'll get to people at the Justice
Department."
For instance?
"Everybody meets with me," he said with a kidding-on-the-square grin.
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Finally meeting Kimberlin after all this time, I couldn't avoid asking how a once very thin, white,
middle-class kid got along in various prisons.
"Everybody told me I'd have a tough adjustment in prison," he said. "But I never `got into' jail or
became dependent on it.
"I didn't do cards, drugs, tattoos, sex with other guys or hang out with gangs. But there is a lot of
peer pressure and violence. I saw people beat, molested and raped. I did get into a lot of fights."
I said a "once very thin" kid, since Kimberlin's great passion, besides his jailhouse lawyering,
became power lifting; weighing 113 pounds, he says he was able to bench press 265 pounds and
Featured Articles
dead lift an impressive 410 pounds. In addition, he did yoga, maintained a vegetarian diet and
helped develop a "Wellness" program he ran for fellow inmates at one prison, in Memphis.
He listened to National Public Radio every day, read USA Today ("Not the best paper, but a fast
read"), and attained several academic degrees and studied Russian via correspondence courses.
And now he's free.
"It was thrilling (getting out)," said the "Speedway bomber" with what seemed uncharacteristic
spontaneity. "Hearing birds, seeing stars, even smelling exhaust fumes, it was all thrilling."
Gimme a break
Richard Cohen, a columnist for the Washington Post, gives us the pundit's line of the week:
The just-departed White House counsel Bernard Nussbaum "failed to understand that what
matters most in this town, if not in America, is candor-at least the appearance of it," Cohen wrote.
Huh?
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[PROPOSED] ORDER

Upon consideration of the Motion to Dismiss the First Amended Complaint filed by The
Blaze, Inc., Mercury Radio Arts, and Glenn Beck (collectively, the Blaze Defendants), 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 as to the Blaze Defendants; and
(2) The Blaze Defendants are hereby AWARDED COSTS AND ATTORNEY FEES
incurred in defending this action, under the Courts inherent powers, in an amount to be
determined by the Court.
SO ORDERED.

________________________________
Paul W. Grimm
Dated: ____________________, 2014 United States District Judge

BRETT KIMBERLIN,

Plaintiff,

v.


Defendants.


Case 8:l3-cv-03059-PWG Document 83-3 Filed 02/2l/l4 Page l of l

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