BRETT KIMBERLIN, ) ) Plaintiff, ) ) v. ) Case No. PWG 13 3059 ) NATIONAL BLOGGERS CLUB, ) Et. al. ) ) Defendants. )
DEFENDANT DB CAPITOL STRATEGIES, PLLCS OPPOSITION TO PLAINTIFFS MOTION TO FILE SECOND AMENDED COMPLAINT
Comes now, Defendant DB Capitol Strategies, PLLC (hereinafter !DBCS"), by and through counsel, hereby opposes Plaintiff Brett Kimberlin#s (hereinafter !Plaintiff") Motion to File Amended Complaint for the reasons stated herein. On March 7, 2014, Plaintiff filed his Motion to File Second Amended Complaint, in which he seeks to join three additional defendants and alleges additional claims of false light invasion of privacy, interference with business relationships, interference with prospective advantage, conspiracy, and battery. See Pl.#s Mot. to File Second Am. Compl. at 5, ECF No. 100-1. Plaintiff#s Motion to File Second Amended Complaint (hereinafter !Motion to Amend") should be denied for two reasons. First, further amendment would be wholly futile because the proposed amendments fail to cure deficiencies in his previous amendment and would not withstand a motion to dismiss. Second, it would result in undue prejudice to DBCS. PRELIMINARY MATTER Before addressing the substance of DBCS#s Opposition, DBCS, through its sole member Dan Backer, filed its (Consent) Emergency Motion for Extension of Time to Respond to Plaintiff#s Motion to Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page l of l0 !
Amend (ECF No. 100) on March 28, 2014 (hereinafter !(Consent) Emergency Motion"). ECF No. 117. Undersigned counsel was emergently admitted to the hospital on Thursday, March 27, 2014 and was unable to file an Opposition on DBCS#behalf by the agreed upon deadline of March 28, 2014. While this Court has not yet ruled upon this (Consent) Emergency Motion, the agreed upon deadline between Plaintiff and DBCS for DBCS#Opposition is March 31, 2014. Thus, DBCS files this Opposition in accordance with that agreement while awaiting a ruling from this Court. BACKGROUND The First Amended Complaint (hereinafter !FAC") is 50 pages long and contains 214 paragraphs. Pl.#s Am. Compl., ECF No. 2. Thirteen defendants have filed Motions to Dismiss as a result of the FAC. ECF Nos. 5, 8, 11, 16, 41, 50, 83 and 87. On February 21, 2014, this Court allowed Plaintiff to seek leave to amend his FAC. Letter Order, ECF No. 88. In doing so, this Court advised Plaintiff that this would be his last opportunity to amend, and that failure to comply with Local Rule 103.6 would result in Plaintiff#s Motion to Amend being denied by the Clerk. Id. at 5. Plaintiff filed his Motion to Amend on March 7, 2014 and attached copies of his proposed Second Amended Complaint (hereinafter !SAC"). The SAC, instead of clarifying the allegations of the FAC, exacerbates both the redundancy and convolution of the FAC. The SAC is 82 pages and 285 paragraphs long, names three new defendants, and adds entirely new theories of the case, unsupported statements alleged as facts, and causes of action not present in the FAC. Further, Plaintiff does little to remove !redundant, immaterial, impertinent, or scandalous matter"from the text, as had been ordered by this Court. See Case Management Order at B.12, ECF No. 97. Indeed, Plaintiff#s SAC contains multiple paragraphs which are immaterial and irrelevant to his alleged causes of action against the defendants. See, for example, Plaintiff#s SAC, at 33-37. Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page 2 of l0 #
Additionally, the SAC fails to comply with the requirements of Local Rule 103.6(c), which Plaintiff was expressly told to follow by this Court. See Letter Order, ECF No. 88, at 5. L.R. 103.6(c) requires that one copy contain lined-through, stricken material (or, alternatively enclosed in brackets), while newly included material is required to be underlined or in bold-faced type. In addition to the failures articulated below, Plaintiff#s blatant disregard for the requirements of Local Rule 103.6 are well-briefed by the Motions in Opposition filed by the other defendants in this matter. See Def. Walker#s Opposition to Pl.#s Mot. to File Second Am. Compl. at 2-5, ECF No. 115; Def. Hoge#s Opposition to Pl.#s Mot. to File Second Am. Compl. at 1-4, ECF No. 114; Mem. of Defs. Malkin and Twitchy in Opposition to Pl.#s Mot. to File Second Am. Compl. at 2-3, ECF No. 111. This Court explicitly directed Plaintiff to adhere to the strictures of Local Rule 103.6 in submitting his proposed amended pleading. Letter Order, ECF No. 88, at 5. The purpose of Rule 103.6#s redline requirement will have been wholly upended if each defendant is required to go through both the 50-page FAC and the 82-page SAC in order to ascertain what has been added and/or removed. The Rule places the burden on the movant to clearly indicate the changes being sought in the amendment and, here, Plaintiff failed to meet this burden. ARGUMENT Rule 15(a) calls for amendment where !justice requires", but an amendment should be denied when the actions of the plaintiff demonstrate the following: !undue delay, bad faith, dilatory motive[], repeated failure to cure deficiencies by amendments previously allowed, and undue prejudice to the opposing party". Foman v. Davis, 371 U.S. 178, 182 (1962); see Bennett v. Damascus Cmty. Bank, 2006 Md. Cir. Ct. LEXIS 14, *10 (Md. Cir. Ct. April 6, 2006). Additionally, "leave to amend need not be given" under Rule 15 if it would be futile to do so; where, for example !a complaint, as amended, is subject to dismissal." Dep't of Fair Empl. & Hous. v. Law Sch. Admission Council Inc., 2013 U.S. Dist. LEXIS Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page 3 of l0 $
16942 at *20 (N.D. Cal. Feb. 6, 2013) (quoting Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989)). Fed. R. Civ. P. 15. For the reasons described below, Plaintiff#s Motion to Amend should be denied. A. Further Amendment to Plaintiffs First Amended Complaint Would Be Futile
i. Further Amendment to Plaintiffs First Amended Complaint Would Violate FRCP Rule 8
!To withstand a motion to dismiss, the complaint need only satisfy the $simplified pleading standard#of Rule 8(a), which requires a !short plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz v. Sroema N.A., 534 U.S. 506, 513, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Cuffee v. Verizon Communications, Inc., 755 F. Supp. 2d 672, 677 (D. Md. 2010). The goal of the rule is to avoid complaints !so verbose that the Court cannot identify . . . the claims of the pleader and adjudicate them . . . on the merits." Harrell v. Directors of Bureau of Narcotics and Dangerous Drugs, 70 F.R.D. 444, 446 (E.D. Tenn. 1975); see Holsey v. Collins, 90 F.R.D. 646 (D. Md. 1981) (where the plaintiff#s motion to amend complaint was denied for failure to conform to the court#s orders). Plaintiff#s SAC is not a short and plain statement of the claim; it adds thirty-two pages to an already lengthy FAC. Furthermore, the unnecessary verbosity and blatant disregard for organization make it difficult, if not impossible, for both defendants and this Court to identify and adjudicate the claims it purports to add. The SAC is subject to dismissal under a plain application of these standards, and Plaintiff#s Motion to Amend should be denied for futility. ii. Plaintiffs Second Amended Complaint Does Not Cure the Defects Present in the First Amended Complaint
"Leave to amend need not be given" under Rule 15 if it would be futile to do so. Fed. R. Civ. P. 15. An example of such a situation would be "if a complaint, as amended, is subject to dismissal." Dep't Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page 4 of l0 %
of Fair Empl. & Hous. v. Law Sch. Admission Council Inc., 2013 U.S. Dist. LEXIS 16942 at *20 (N.D. Cal. Feb. 6, 2013) (quoting Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989)). "[A] proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Dept of Fair Empl. & Hous. at *20 (quoting Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)). In Huszar v. Zeleny, plaintiff, acting pro se, commenced a lawsuit against four defendants alleging both fraud and the deprivation of both constitutional and civil rights. Huszar v. Zeleny, 269 F. Supp 2d 98, 106 (E.D. N.Y. 2003). After two separate motions to dismiss were filed, the plaintiff filed an amended complaint, which added two additional defendants, a RICO claim and a request for injunctive relief. Id. The court concluded that, even under the most liberal reading of the plaintiff#s amended complaint, it was devoid of any viable cause of action. Id. at 105. The court noted that the plaintiff failed, in his amended complaint, to elaborate on how defendants were engaged in a RICO scheme. Id. Similarly, the plaintiff#s claim of fraud only contained conclusory allegations even after the plaintiff amended his complaint. Id. Despite the plaintiff#s pro se status, the court noted that he had ample opportunity to save his suit by filing an amended complaint after defendants filed their initial motions to dismiss. Id. at 106. The court held that any further attempt to amend the plaintiff#s case would be futile, and futility !is a valid reason for denying a motion to amend." Id. Here, Plaintiff#s attempt to rescue his case by filing his SAC is futile. Plaintiff, who is also a pro se litigant, should not be !exempt . . . from compliance with relevant rules of procedural and substantive case law." Id. at 103 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As in Huszar, Plaintiff failed to allege how DBCS was engaged in !racketeering activity"or how DBCS participated in an !enterprise". Plaintiff further failed to explain why particular statements made by DBCS were fraudulent, Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page 5 of l0 &
and, similar to Huszer, relies on conclusory statements to support this allegation. As such, Plaintiff failed to articulate viable causes of action under the most generous reading of his SAC. As such, further amendment would be futile and his Motion to Amend should be denied. In Alexander v. Wash. Gas Light Co., the plaintiff attempted to file a second amended complaint after the defendants#filed their motion to dismiss. Alexander, 481 F. Supp. 2d 16, 33 (D.D.C. 2006). The court construed this attempt as dilatory because plaintiff merely sought to elaborate on claims he had already asserted. Id. at 40. The court also articulated that the amendments plaintiff made to his original complaint failed to change the sufficiency of his claims and would not survive a 12(b)(6) motion to dismiss. Id. As in Alexander, the instant case demonstrates that, while Plaintiff attempts to add new claims, these additional claims are just as insufficient as those articulated in the FAC. Here, Plaintiff employs similar dilatory tactics by introducing new parties and new claims, but he fails to plead these claims with the particularity required by Bell Atl. Corp. v. Twombly. See Bell Atl. Corp, 550 U.S. 544, 555 (2007) quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (A plaintiff#s complaint must contain !% a short and plain statement of a claim showing that the pleader is entitled to relief, in order to give a defendant fair notice of what the claim is and the grounds upon which it rest."). DBCS has already briefed this Court on the plethora of legal deficiencies in the FAC in its pending Motion to Dismiss and subsequent Reply to Plaintiff#s Response to Motion to Dismiss (hereinafter !Reply"). See ECF Nos. 8 and 62. The failures and deficiencies of Plaintiff#s FAC, even though outlined point by point in DBCS#Motion to Dismiss and subsequent Reply, remain in Plaintiff#s SAC. In the interest of brevity, below is an example of some of the failures in Plaintiff#s SAC: Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page 6 of l0 '
Plaintiff fails to allege sufficient facts to show conduct, an enterprise, and racketeering activity under 18 U.S.C. 1962(c)-(d). See Def. DBCS Mot. Dismiss, ECF No. 8, at 2-3; Pl.#s Mot. First Am. Compl., ECF No. 48, at 76-78. Plaintiff fails to state a claim under 42 U.S.C. 1985(2). See Def. DBCS Mot. Dismiss, ECF No. 8, at 4-5; Pl.#s Mot. First Am. Compl., ECF No. 48, at 162-66. Plaintiff fails to state a claim under 42 U.S.C. 1985(3). See Def. DBCS Mot. Dismiss, ECF No. 8, at 5-6; Pl. Mot. First Am. Compl., ECF No. 48, at 162-66. Plaintiff fails to state a claim for Fraud and Negligent Misrepresentation. See Def. DBCS Mot. Dismiss, ECF No. 8, at 6-7; Pl. Mot. First Am. Compl., ECF No. 48, at 76-78. Plaintiff fails to state a claim for Defamation. See Def. DBCS Mot. Dismiss, ECF No. 8, at 7-10; Pl. Mot. First Am. Compl., ECF No. 48, at 76-78. Plaintiff fails to state a claim for False Light Invasion of Privacy. See Def. DBCS Mot. Dismiss, ECF No. 8, at 10-11; Pl. Mot. First Am. Compl., ECF No. 48, at 197-207. Plaintiff fails to state a claim for Intentional Infliction of Emotional Distress. See Def. DBCS Mot. Dismiss, ECF No. 8, at 11-12; Pl. Mot. First Am. Compl. , ECF No. 48, at 76-78. Plaintiff#s SAC fails to rectify the deficiencies in his FAC. As such, Plaintiff#s Motion to Amend should be denied.
B. Granting Plaintiffs Motion for Leave to File Second Amended Complaint Would Substantially Prejudice DBCS
!Whether an amendment is prejudicial will often be determined by the nature of the amendment and its timing." Mayfield v. NASCAR, 674 F.3d 369, 370 (4th Cir. 2012), citing Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006). The instant case involves a clear risk of undue prejudice to DBCS as this Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page 7 of l0 (
Court itself considered might occur. See Letter Order, ECF No. 88, at 5. Here, service will need to be perfected on three new defendants. This will impose additional delays and costs on this Court and all parties. Further, DBCS, and many of the other defendants, have filed Motions to Dismiss the FAC and its Motion is ripe for ruling by the Court. Almost all of the grounds articulated in DBCS#original Motion to Dismiss are still applicable and would have to be reasserted in a second Motion to Dismiss. The allegations contained in Plaintiff#s SAC are just as vague and meandering as those contained in the FAC. Additionally, the delays and costs that would be incurred in reading all of the other Motions to Dismiss that will inevitably be filed by the other defendants and the corresponding Oppositions and Replies would require a tremendous amount of time and impose significant burdens on DBCS. Plaintiff#s Motion to Amend should be denied.
CONCLUSION For the foregoing reasons, DB Capitol Strategies asks the Court to deny Plaintiff#s Motion File Second Amended Complaint.
Respectfully submitted,
_/s/_______________________________ Caitlin Parry Contestable 717 King Street Ste 300 Alexandria, Virginia 22314 (727) 644-2957 (202) 478-0750 Caitlin@dbcapitolstrategies.com Bar No. 18826
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION
BRETT KIMBERLIN, ) ) Plaintiff, ) ) v. ) Case No. PWG 13 3059 ) NATIONAL BLOGGERS CLUB, ) Et. al. ) ) Defendants. )
PROPOSED ORDER
For the reasons set out in Defendant DB Capitol Strategies PLLC#s Opposition to Plaintiff#s Motion to File Second Amended Complaint, it is this ____ day of _________, 2014, by the U.S. District Court for the District of Maryland, Greenbelt Division, ORDERED that the Motion in Opposition be, and hereby is, GRANTED.
_________________________ Paul W. Grimm United States District Judge U.S. District Court for the District of Maryland, Greenbelt Division
Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page 9 of l0 *+
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of Defendant DB Capitol Strategies, PLLC#s Opposition to Plaintiff#s Motion to File Second Amended Complaint and Proposed Order was served with consent, via electronic mail, this 31 st day of March, 2014, to:
National Bloggers Club Ali Akbar Aaron Walker William Hoge Robert Stacy McCain KimberlinUnmasked Brett Kimberlin Lee Stranahan
I FURTHER CERTIFY that a true and correct copy of Defendant DB Capitol Strategies, PLLC#s Opposition to Plaintiff#s Motion to File Second Amended Complaint and Proposed Order was served via ECF this 31 st day of March, 2014, to:
Mark I Bailen Michael F Smith Eleanor M Lackman Benjamin D Light Linda S Mericle Theodore Bruce Godfrey Ronald D. Coleman David Robert Rocah Paul Allen Levy
_/s/_______________________________ Caitlin Parry Contestable 717 King Street Ste 300 Alexandria, Virginia 22314 (727) 644-2957 (202) 478-0750 Caitlin@dbcapitolstrategies.com Bar No. 18826
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