Case 8:13-cv-03059-GJH Document 244 Filed 01/08/15 Page 1 of 22

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
BRETT KIMBERLIN,
Plaintiff,
Case No. 13-cv-3059 (GJH)
v.
NATIONAL BLOGGERS CLUB, et al.,
Defendants.

DEFENDANTS THE BLAZE INC., MERCURY RADIO ARTS, AND GLENN BECKS
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF THEIR
MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................................... ii
PRELIMINARY STATEMENT ...............................................................................................1
ARGUMENT .............................................................................................................................2
I.

KIMBERLIN DOES NOT DEFEND HIS CLAIMS FOR

VIOLATION OF THE KU KLUX KLAN ACT, FOR TORTIOUS
INTERFERENCE, AND FOR CONSPIRACY TO COMMIT STATE
LAW TORTS, AND THEREFORE HAS ABANDONED THEM ..................3

II.

KIMBERLINS IIED CLAIM FAILS AS A MATTER OF LAW

BASED ON CLEAR LEGAL PRECEDENT ...................................................4

III.

KIMBERLIN OFFERS NO FURTHER SUPPORT FOR HIS

IMPLAUSIBLE RICO CLAIM AGAINST THE BLAZE
DEFENDANTS .................................................................................................5

IV.

KIMBERLIN FAILS TO ESTABLISH THAT HIS FALSE LIGHT

INVASION OF PRIVACY CLAIM IS EITHER TIMELY OR
MERITORIOUS ................................................................................................7
A. Kimberlins False Light Claim Is Procedurally Deficient ...........................8
B. Kimberlin Misrepresents the Facts and the Blaze Defendants
Statements in Order to Manufacture a Claim of Falsity ..............................9
C. Kimberlin Does Not Set Forth Sufficiently Plausible Allegations to
Satisfy the State-of-Mind Requirement Applicable to False Light
Claims ........................................................................................................12
D. Kimberlin Was Not Portrayed in a Worse Light than Before The
Statements at Issue Were Made, and Therefore He Does Not
Plausibly Allege that the Blaze Defendants Caused Him Any
Injury ..........................................................................................................15

CONCLUSION ........................................................................................................................16

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TABLE OF AUTHORITIES
Cases ..................................................................................................................................... Page(s)
Alharbi v. The Blaze, Inc.,
No. 1:14-CV-11550 (D. Mass. Dec. 2, 2014) ..........................................................................14
Allen v. Bethlehem Steel Corp.,
547 A.2d 1105 (Md. Ct. Spec. App. 1988) ................................................................................8
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................3, 13, 15, 16
Archuleta v. City of Roswell,
898 F. Supp. 2d 1240 (D.N.M. 2012) ......................................................................................16
Bagwell v. Peninsula Regl Med. Ctr.,
665 A.2d 297 (Md. Ct. Spec. App. 1995) ........................................................................5, 9, 12
Batson v. Shiflett,
602 A.2d 1191 (Md. 1992) .......................................................................................................4
Beckley Newspapers Corp. v. Hanks,
389 U.S. 81 (1967) ..................................................................................................................14
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...............................................................................................................3, 7
Benahmed v. BAE Sys. Tech. Solutions & Servs., Inc.,
No. 12-CV-01974-AW, 2012 WL 5426432 (D. Md. Nov. 6, 2012) .........................................3
Capital-Gazette Newspapers, Inc. v. Stack,
445 A.2d 1038 (Md. 1982) ..........................................................................................12, 13, 14
Conley v. Gibson,
355 U.S. 41 (1957) .....................................................................................................................3
Cruz v. Latin News Impacto Newspaper,
627 N.Y.S.2d 388 (App. Div. 1st Dept 1995) ..........................................................................8
Davis v. Wilmington Fin., Inc.,
No. CIV. PJM 09-1505, 2010 WL 1375363 (D. Md. Mar. 26, 2010) ...................................6, 7
Ferragamo v. Signet Bank/Maryland,
No. CIV. A. WN-88-3333, 1992 WL 219826 (D. Md. Mar. 17, 1992)...................................11
Furman v. Sheppard,
744 A.2d 583 (Md. Ct. Spec. App. 2000) ..................................................................................7
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Gallardo v. FedEx Kinkos Office & Print Servs., Inc.,

No. 08-CV-00392 (FJM), 2008 WL 2143011 (D. Md. May 12, 2008) .............................10, 11
Garrison v. State of Louisiana,
379 U.S. 64 (1964) ..................................................................................................................14
Ground Zero Museum Workshop v. Wilson,
813 F. Supp. 2d 678 (D. Md. 2011) .......................................................................................8, 9
Hatley v. Tuffy,
No. CIV. JFM-09-711, 2010 WL 4923831 (D. Md. Dec. 2, 2010) .................................7, 9, 12
Hollander v. Lubow,
351 A.2d 421 (Md. 1976) ..........................................................................................................7
Kimm v. Chang Hoon Lee,
No. 04 Civ. 5724, 2005 WL 89386 (S.D.N.Y. Jan. 13, 2005) ...................................................6
Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc.,
674 F.3d 369 (4th Cir. 2012) ...................................................................................................13
Mentch v. E. Sav. Bank, FSB,
949 F. Supp. 1236 (D. Md. 1997) ..............................................................................................3
New York Times Co. v. Sullivan,
387 U.S. 254 (1964) ................................................................................................................14
Phillips v. LCI Int'l, Inc.,
190 F.3d 609 (4th Cir. 1999) .....................................................................................................9
Piscatelli v. Van Smith,
12 A.3d 164 (Md. Ct. Spec. App. 2011) ..................................................................................11
Piscatelli v. Van Smith,
35 A.3d 1140 (Md. 2012) ..........................................................................................................8
Polanco v. Fager,
886 F.2d 66 (4th Cir. 1989) .....................................................................................................11
Professionals, Inc. v. Berry,
923 F.2d 849 (4th Cir. 1991) .................................................................................................5, 6
Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479 (1985) ...................................................................................................................5
Seymour v. A.S. Abell Co.,
557 F. Supp. 951 (D. Md. 1983) ..............................................................................................11

iii

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Sirpal v. Fengrong Wang,

CIV. WDQ-12-0365, 2012 WL 2880565 (D. Md. July 12, 2012) ............................................4
Smith v. Esquire, Inc.,
494 F. Supp. 967 (D. Md. 1980) ............................................................................................7, 8
United States v. Kimberlin,
805 F.2d 210 (7th Cir. 1986) ...................................................................................................14
Van Alstyne v. Elec. Scriptorium, Ltd.,
560 F.3d 199 (4th Cir. 2009) ...................................................................................................15
Wang Labs., Inc. v. Burts,
612 F. Supp. 441 (D. Md. 1984) ................................................................................................6
Womack v. Eldridge,
210 S.E.2d 145 (Va. 1974).....................................................................................................4, 5
Zachair, Ltd. v. Driggs,
965 F. Supp. 741 (D. Md. 1997) ................................................................................................6
Statutes
18 U.S.C. 1961 ..................................................................................................................1, 5, 6, 7
Other Authorities
Restatement (Second) of Torts 652E (1977) ..........................................................................9, 12

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Defendants The Blaze Inc. (The Blaze), Mercury Radio Arts (MRA), and Glenn
Beck (Beck) (collectively the Blaze Defendants) respectfully submit this Reply
Memorandum of Law in further support of their motion to dismiss plaintiff Brett Kimberlins
Second Amended Complaint.
PRELIMINARY STATEMENT
Kimberlins lengthy Response to Motions to Dismiss (the Opposition Brief) contains
myriad allegations, arguments, and even new facts not pleaded in the Second Amended
Complaint (Complaint) to try to avoid this Courts prohibition on further amendments, but he
does not come close to curing the many substantive and procedural defects in his case. The
Blaze Defendants raised these numerous shortcomings in their previous motion to dismiss and
pointed them out in correspondence with Kimberlin in ultimately unsuccessful attempts to
educate him on the futility of his claims. Yet Kimberlin proceeded, undeterred, and months
later, the Blaze Defendants are back where they started: defending baseless and frivolous claims
that Kimberlin still has not substantiated.
First, Kimberlins Opposition Brief makes clear that because he missed his opportunity
to sue the Blaze Defendants for defamation, he has thrown every possible claim at the wall in an
attempt to see what sticks. However, he fails to put forth any substantive response to the Blaze
Defendants arguments on several of his claims, including, among others, RICO and intentional
infliction of emotional distress (IIED). As a result, Kimberlin confirms that these claims have
no merit and, as a matter of law, abandons them.
Second, Kimberlins claim for false light invasion of privacy is fatally flawed both
procedurally and substantively. The Opposition Brief does not adequately explain why
Kimberlins false light claim is timely, and in fact, misrepresents the case law interpreting the

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statute of limitations for that claim in Maryland. Kimberlin also continues to conflate false light
with defamation, and aside from events that took place on a single day in May of 2012,
Kimberlin does not actually allege any wrongdoing by the Blaze Defendants. And even on that
one day the Blaze Defendants did not make any statements or engage in any conduct that would
be actionable.
Third, even if the Blaze Defendants had made untrue or otherwise damaging statements
which they did not the Opposition Brief underscores the fact that the statements Kimberlin
finds troublesome were circulating on the Internet for up to two years before the one day in 2012
on which the Blaze Defendants made a cameo appearance in this ongoing drama. Thus, if any
injury occurred and the Blaze Defendants do not believe Kimberlin was plausibly injured it
occurred before their involvement, rendering a causal connection with the Blaze Defendants
actions far too speculative for this Court to entertain.
Kimberlin continues to obfuscate and misrepresent facts and overstate his arguments to
the point of incredibility. For example, his claim that he has falsely been called a terrorist and a
criminal (see Opp. Br. at 11) is simply a denial of reality, and his grandiose allegations e.g.,
that the defendants think all felons should be robbed of their right to sue for defamation (see id.
at 41) are patently absurd. These among many other non-credible and implausible arguments
prove that Kimberlin is not to be trusted. The Blaze Defendants respectfully request that this
Court put an end to Kimberlins ongoing waste of the Blaze Defendants and this Courts time
and resources, and dismiss all of his claims against the Blaze Defendants with prejudice.
ARGUMENT
Kimberlin once told this Court that [s]ome of the Defendants have agendas while others
got caught up in something they were not fully aware of. [Dkt. No. 153.] The Blaze
Defendants belong in the latter category. Kimberlin has strained to fit the Blaze Defendants into
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the twisted contours of this case, but the parade of horribles he conjures largely has nothing to do
with the Blaze Defendants. (See, e.g., Opp. Br. at 2-3.) Kimberlin does not even adhere to the
correct federal pleading standards in attempting to keep his case alive. He relies on Conley v.
Gibson, 355 U.S.41 (1957), which he previously was advised no longer states the applicable law.
It is implausible and speculative claims like Kimberlins that Twombly and Iqbal sought to guard
against. Kimberlin should not be permitted to further abuse the judicial system to concoct a case
against the Blaze Defendants where one does not exist.
I.

KIMBERLIN DOES NOT DEFEND HIS CLAIMS FOR VIOLATION OF THE

KU KLUX KLAN ACT, FOR TORTIOUS INTERFERENCE, AND FOR
CONSPIRACY TO COMMIT STATE LAW TORTS, AND THEREFORE HAS
ABANDONED THEM
Kimberlins 50-page Opposition Brief tellingly makes no mention of three of his most

tenuous claims against the Blaze Defendants. Kimberlin does not dispute that he states no claim
against the Blaze Defendants for violation of the Ku Klux Klan Act, for tortious interference
with prospective economic advantage, and for conspiracy to commit state law torts. Kimberlins
silence confirms that these claims have no merit (as the Blaze Defendants warned him several
times) and that they were used to obfuscate his failure to timely pursue a defamation claim.
The Court should interpret Kimberlins failure to defend his claims as abandonment.
Where a Plaintiff fails to address a claim in response to a motion to dismiss, the Court may find
that the Plaintiff has abandoned the claim. Benahmed v. BAE Sys. Tech. Solutions & Servs.,
Inc., No. 12-CV-01974-AW, 2012 WL 5426432, at *6 (D. Md. Nov. 6, 2012); Mentch v. E. Sav.
Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997) (non-moving partys failure to address in
opposition brief an argument raised in opening brief constitutes abandonment of the claim).
The Blaze Defendants otherwise respectfully refer the Court to the arguments set forth in
their Opening Brief as to why these three claims lack any legal merit. Whether the Court finds
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them to be abandoned or simply baseless, Kimberlins claims under the Ku Klux Klan Act and
for tortious interference with prospective economic advantage and conspiracy to commit state
law torts should be dismissed with prejudice.
II.

KIMBERLINS IIED CLAIM FAILS AS A MATTER OF LAW BASED ON

CLEAR LEGAL PRECEDENT
Notwithstanding Kimberlins desperate attempt to bolster his IIED claim (see Opp. Br. at

47-48), the facts of this case fail to state a claim for IIED as a matter of law. Maryland courts
recognize a bright-line rule that the mere publication of defamatory statements, even those
accusing one of a crime, is insufficient to state a claim for IIED.1 See 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, and even
strategically designed [speech] . . . intended and calculated to harass the plaintiff by accusing
him of crimes is not extreme and outrageous.) (quoting Batson v. Shiflett, 602 A.2d 1191, 1216
(Md. 1992)). Thus, even if the Blaze Defendants made or published intentionally false
statements which they did not a claim would not lie for IIED.
The one case Kimberlin cites in support of his arguments a 40-year-old Virginia state
case is distinguishable and is plainly insufficient to overcome the applicable authority. In
Womack v. Eldridge, 210 S.E.2d 145 (Va. 1974), the defendant tricked the plaintiff into allowing
her to take his photograph, which was then used in a criminal case against an alleged child
molester with whom plaintiff worked, and plaintiff was called as a witness (but was not accused
of the crime). Womacks case against the photographer was tried to a jury, which ruled in favor
of Womack on his IIED claim. The Supreme Court of Virginia overturned the trial courts

The Blaze Defendants, of course, dispute that they made any defamatory or accusatory
statements.
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judgment NOV, holding that reasonable men may disagree as to whether defendants conduct
was extreme and outrageous and whether plaintiffs emotional distress was severe and that the
questions presented were for a jury to determine. Id. at 148. Notwithstanding the cases very
different procedural posture and the irrelevance of its holding to this case, Womack is also
inapplicable in that the court emphasized that a cause of action for IIED will only lie where the
wrongdoers conduct was intentional or reckless and was undertaken for the specific purpose
of inflicting emotional distress or where he intended his specific conduct and knew or should
have known that emotional distress would likely result. Id. For reasons discussed more fully
below, the Blaze Defendants did not act with the requisite mens rea.
Claims for IIED are rarely viable and this case is not an exception. The Court should
therefore dismiss this claim with prejudice. Bagwell v. Peninsula Regl Med. Ctr., 665 A.2d 297,
319 (Md. Ct. Spec. App. 1995).
III.

KIMBERLIN OFFERS NO FURTHER SUPPORT FOR HIS IMPLAUSIBLE

RICO CLAIM AGAINST THE BLAZE DEFENDANTS
Kimberlins Opposition Brief provides no basis to even suggest that the Blaze Defendants

joined the RICO Enterprise. (Cplt. 87). Kimberlins only argument as to the Blaze
Defendants appears on pages 8-9 of the Opposition Brief. He states that Mr. Beck, along with
other unnamed defendants, spread false narratives, hosted defendants Frey and Walker on his
radio show, and published supposedly defamatory articles about him. (Opp. Br. at 8-9.) These
allegations are insufficient.
To state a RICO claim, a plaintiff must allege, inter alia, a pattern of racketeering
activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). The RICO statute sets forth
an enumerated, exhaustive list of predicate acts which may constitute racketeering activity, see
18 U.S.C. 1961(1), Professionals, Inc. v. Berry, 923 F.2d 849 (4th Cir. 1991) ([S]ection 1961
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. . . alone enumerates all conduct which may constitute racketeering activity.), and the list
does not include tort claims; accordingly, these claims cannot form the basis of a RICO cause of
action. 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). Kimberlin does not argue the
existence of any plausible facts that would suggest any of the Blaze Defendants engaged in any
applicable RICO predicate acts.
Kimberlins feeble attempt to include Mr. Beck in his RICO claim by alleging that Mr.
Beck want[s] to destroy Justice Through Music (JTM) is meritless. (Opp. Br. at 17). First,
this is a new allegation of fact not contained in the Second Amended Complaint, and should be
disregarded. See Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997). Kimberlin is
attempting to end-run the Courts ruling that he can no longer amend his complaint. [Dkt. No.
88 at 5; Dkt. No. 133 at 1]. Moreover, Kimberlins allegations are not credible. For example, he
implies that he is in danger of losing his employment at JTM. (See Opp. Br. at 17.) But
Kimberlin is not a mere employee of JTM he is the director of JTM (see id.), and he is
therefore not at risk of being fired unless he is planning on firing himself. .
Further, Kimberlins continued ambiguous references to Defendants (see id. at 9, 14,
15), to attempt to ensnare the Blaze Defendants are insufficient to drag them into his meritless
claim, particularly because he makes allegations of fraud against other defendants. See, e.g.,
Wang Labs., Inc. v. Burts, 612 F. Supp. 441, 445 (D. Md. 1984) (dismissing defendants in RICO
suit predicated on mail fraud where plaintiffs grouped multiple defendants together under the
heading of defendants in three conclusory paragraphs); Davis v. Wilmington Fin., Inc., No.
CIV. PJM 09-1505, 2010 WL 1375363, at *3 (D. Md. Mar. 26, 2010) (The Rule 9(b) problem is

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exacerbated in this case where multiple Defendants are involved and the pleading alleges some
type of fraudulent scheme without clearly identifying which Defendant played which role.).
See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 555 (2007) (factual allegations in the
complaint must be enough to raise a right to relief above the speculative level and must give
fair notice of what the . . . claim is and the grounds upon which it rests).
Since Kimberlin offers nothing more than rank speculation and nondescript allegations,
his RICO claim should be dismissed with prejudice as to the Blaze Defendants.
IV.

KIMBERLIN FAILS TO ESTABLISH THAT HIS FALSE LIGHT INVASION OF

PRIVACY CLAIM IS EITHER TIMELY OR MERITORIOUS
Kimberlins purported claim for false light invasion of privacy is simultaneously

muddled, sparse, and misleading. It is not even clear what he is actually alleging against the
Blaze Defendants. Maryland recognizes several invasion-of-privacy torts, and while his
Opposition Brief does not confirm which tort the Complaint purports to allege, it appears that
Kimberlin is attempting to construct a claim for false light2 (although, tellingly, he often
conflates false light with defamation (see, e.g., Opp. Br. at 40-42)). Assuming this is
Kimberlins intention, his claim fails and should be dismissed with prejudice for at least four
independent reasons it is untimely and fails to satisfy three critical elements of the tort. See,
e.g., Smith v. Esquire, Inc., 494 F. Supp. 967, 970 (D. Md. 1980) (dismissing false light claim
brought after one-year statute of limitations); Furman v. Sheppard, 744 A.2d 583, 587 (Md. Ct.
Spec. App. 2000) (granting motion to dismiss for failure to satisfy falsity element); See Hatley
v. Tuffy, No. CIV. JFM-09-711, 2010 WL 4923831, at *9 (D. Md. Dec. 2, 2010) (same).

For instance, Maryland recognizes the tort of publication of private facts, see Hollander v.
Lubow, 351 A.2d 421, 425 (Md. 1976), but Kimberlin could not assert such a claim. According
to his own allegations, the facts as stated by the Blaze Defendants are not private, but rather are
alleged falsehoods about his well-documented past and a criminal act that is very public. (See,
e.g., Cplt. 2 (swatting results in a large police response).)
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A.

Kimberlins False Light Claim Is Procedurally Deficient

Kimberlin dedicates less than one page to the argument that his false light claim is not
barred by the statute of limitations, which consists of a misrepresentation of the law and a
desperate attempt to couch the statute of limitations as a technicality. The Court should not
countenance such gamesmanship.
Kimberlins assertion that Marylands highest Court has held that a three-year statute
of limitations applies to false light claims is false. The case cited for this erroneous proposition
Allen v. Bethlehem Steel Corp. was actually decided by the Maryland Court of Special
Appeals, an intermediate appellate court. 547 A.2d 1105 (Md. Ct. Spec. App. 1988). Kimberlin
misleadingly uses an official Maryland Reporter citation (314 Md. 458) to reference the Allen
case (Opp. Br. at 13), but this citation refers to the Maryland Court of Appeals denial of
certiorari in that case. Marylands high court declined to decide this issue 26 years ago.
The statute of limitations is not a mere technicality as Kimberlin claims (Opp. Br. at
27), and Kimberlin should not be allowed to prosecute time-barred claims against the Blaze
Defendants by distorting the law and treating the timeliness requirement with disdain. As the
Blaze Defendants argued in their Opening Brief at 8-9, the most reasonable approach and the
one most likely to be followed by the Maryland Court of Appeals is to apply a one-year statute
of limitations to Kimberlins false light invasion of privacy claim. See Smith v. Esquire, Inc.,
494 F. Supp. 967, 970 (D. Md. 1980); Piscatelli v. Van Smith, 35 A.3d 1140, 1146-47 (Md.
2012). The Court should find that the claim is untimely and merits dismissal with prejudice.3

In light of the fact that a cause of action for false light does not exist under New York law, see
Cruz v. Latin News Impacto Newspaper, 627 N.Y.S.2d 388, 389 (App. Div. 1st Dept 1995)
(New York does not recognize a tort for reporting inaccurate, but not defamatory
information.), it is questionable whether Kimberlin has any ability to even assert this claim
against the New York-based Blaze Defendants in the first place. See, e.g., Ground Zero Museum
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B.

Kimberlin Misrepresents the Facts and the Blaze Defendants Statements in

Order to Manufacture a Claim of Falsity

Kimberlin cannot be placed in a false light unless he can establish that the matters to
which the Blaze Defendants allegedly gave publicity were, in fact, false. See Hatley, 2010 WL
4923831, at *8-9; Bagwell, 665 A.2d 297 (citing Restatement (Second) of Torts 652E). The
allegations restated in Kimberlin Opposition Brief belie the notion that the Blaze Defendants
made any false statements; in fact, they demonstrate that the only false statements in this case are
Kimberlins, and that his purported facts, as well as his arguments, are not trustworthy.
First, many of the statements at issue are indisputably true such as those concerning
Kimberlins criminal record (SAC 288; Opp. Br. at 6, 22) including his lengthy imprisonment
for the 1978 Speedway Bombings and he does not deny them. He cannot simultaneously admit
he is a felon (Opp. Br. at 5, 11, 41-42), yet claim that the Blaze Defendants news reports so
stating are false. Kimberlin also does not deny that he is involved in various feuds with
bloggers, and has been in numerous altercations with his opponents. (See SAC 37-38, 56,
102-05; Opp. Br. at 6, 9). Truth is a complete defense to a claim of false light, see Hatley, 2010
WL 4923831, at *8, and Kimberlins claim that the Blaze Defendants falsely called him a
terrorist and an attacker of bloggers (see Opp. Br. at 11), is disingenuous.
Kimberlins other allegations are based on misrepresentations of fact. In the article
contained in Exhibit 4 (on which Kimberlins Opposition Brief focuses),4 Kimberlin claims that
the Blaze told the [State] Department that Plaintiff was a criminal, a swatter, and a terrorist.

Workshop v. Wilson, 813 F. Supp. 2d 678, 699-700 (D. Md. 2011) (applying New York law to
defamation claim involving Internet posting because New York had the most significant
relationship to the alleged defamation).
4
On a motion to dismiss, this Court may consider the articles referenced in the Complaint and in
Kimberlins Opposition Brief because they are arguably integral to and explicitly relied on in
the complaint and because their authenticity is not challenged. See Phillips v. LCI Int'l, Inc.,
190 F.3d 609, 618 (4th Cir. 1999).
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(Opp. Br. at 28 n.5 (citing Exh. 4); see also Cplt. 152.) A plain reading of the article shows
this statement to be false. The Blaze Defendants did not tell the State Department anything;
the article itself says that The Blaze reached out to the [State] department for comment, which
is what Kimberlin claims professional journalists should do, but received no reply. (Opp. Br.
Exh. 4 at 2.) The article also contains no mention whatsoever of swatting, and while it does refer
to Kimberlin as a domestic terrorist, it does not use the word criminal.
Likewise, while Kimberlin alleges that the Blaze Defendants defamed him as a
swatter (see Opp. Br. at 9, 40; Cplt. 88, 90), none of the sources to which Kimberlin refers
says he was the perpetrator of the swatting incidents.5 In fact, the articles say that the perpetrator
of the swattings is unknown, but could possibly be an associate of Kimberlins. Even defendant
Patrick Frey, who appeared on Mr. Becks show, did not impute or imply that Kimberlin
placed the fraudulent call to the police, but rather indicated that the suspect of his swatting was
unknown yet may have been associated with Kimberlin somehow.6 At worst, someone implied
that Kimberlin may have some unsavory associates. The only person imputing the swatting
incidents to Kimberlin is Kimberlin.
Even if the Blaze Defendants had imputed, implied, or speculated that Kimberlin was
behind the swattings or provided a forum for others to do so such statements are inherently
lawful. [W]hen a speaker plainly expresses a subjective view, an interpretation, a theory,
conjecture or surmise, rather than [a] claim[] to be in possession of objectively verifiable [false]

Needless to say, Kimberlin plainly does not assert a claim of defamation against the Blaze
Defendants since he dropped that claim from the Second Amended Complaint.
6
In the interview, Mr. Beck asks Mr. Frey: You cant directly tie this to [Kimberlin], but you
had a SWAT team at your house?; Mr. Frey responds that somebody called to report a
shooting and that Kimberlin and his friends and supporters have engaged in other harassing
conduct against bloggers. See http://www.glennbeck.com/2012/05/25/glenn-talks-to-bloggersabout-brett-kimberlin-terrorism/.
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facts, the statement is not actionable. Gallardo v. FedEx Kinkos Office & Print Servs., Inc.,
No. 08-CV-00392 (FJM), 2008 WL 2143011, at *7 (D. Md. May 12, 2008) (internal citations
and quotation marks omitted). The Blaze Defendants never made any representation that they
possessed objectively verifiable proof that Kimberlin was behind the swattings, nor did their
guests. Rather, they expressed their subjective views and reasonable interpretations and
allowed others to express thoughts, theories, and opinions concerning Kimberlins possible
association with the person who may have committed the crimes.
In addition, the Blaze Defendants are protected by the fair comment privilege enjoyed
by newspapers and other media outlets that express a fair and reasonable opinion or comment
on matters of legitimate public interest, Piscatelli v. Van Smith, 12 A.3d 164 (Md. App. 2011),
as long as the reporting is substantially accurate. Seymour v. A.S. Abell Co., 557 F. Supp. 951,
955 (D. Md. 1983). This qualified privilege applies to false light claims, see Ferragamo v.
Signet Bank/Maryland, No. CIV. A. WN-88-3333, 1992 WL 219826, at *7-8 (D. Md. Mar. 17,
1992), and extends to opinions based on facts even if the facts turn out to be false. Polanco v.
Fager, 886 F.2d 66, 69 (4th Cir. 1989) (privilege applies so long as the publisher was not guilty
of malice in publication). The Blaze Defendants published news reports about crimes which
they considered a matter of serious public concern based on the facts known about Kimberlin
and firsthand witness accounts of swattings. They never accused Kimberlin of perpetrating the
acts. Rather, they conveyed stories from eyewitnesses and gave fair treatment to the story about
the swattings given the admitted ambiguity as to who was behind the acts.
Allowing Kimberlins case to survive would have a chilling effect on free speech, and the
media will be loath to report on suspicions or allegations of criminal activity that are of public
concern for fear of being sued, not only by the alleged perpetrator, but the perpetrators friends

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and associates.7 Yet this appears to be the dangerous result Kimberlin seeks; he is using the
Court to perpetuate his goal of ensuring that nobody ever reports on his past or current life, and
the Court should be careful not to allow Kimberlin to open the door to litigation against media
entities that express legitimate opinions on matters of public importance or allow their guests to
do so.
C.

Kimberlin Does Not Set Forth Sufficiently Plausible Allegations to Satisfy the
State-of-Mind Requirement Applicable to False Light Claims
Kimberlin is wrong to assume that defamation and false light are the same, and that he

can use false light as a back door to an untimely defamation claim. (See, e.g., Opp. Br. at 40-42.)
As Kimberlin concedes, to establish a claim under a theory of false light, he must show that the
Blaze Defendants had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which [Kimberlin] would be placed. See Hatley, 2010
WL 4923831, at *8-9; Restatement (Second) of Torts 652E; Bagwell, 106 Md. App. 470; Cplt.
84. In other words, Kimberlin must satisfy the same actual malice standard as a defamation
claim involving a public figure, regardless of whether he qualifies as a public figure under the
First Amendment.8 This standard is higher than that of plain negligence (which would be the
standard for private figures under defamation law). See Capital-Gazette Newspapers, Inc. v.
Stack, 445 A.2d 1038, 1044 (Md. 1982) (noting that actual malice cannot be established merely
by showing that . . . the publisher acted negligently). To satisfy the actual malice standard,
Kimberlin has to show that the Blaze Defendants made false statements . . . with [a] high degree

As Kimberlin himself points out, in response to public outcry against swatting, members of
Congress and the Office of the Attorney General have investigated these crimes, concerned with
not only the potential for physical injury, but also the potential for chilling effects on political
speech. (See Cplt. 98; Opp. Br. at 8.) The perpetuation of this lawsuit would have the same
chilling effect that members of the Federal Government appear to be interested in preventing.
8
Kimberlins protests concerning his status as a public figure are therefore irrelevant. The Blaze
Defendants, however, maintain that Kimberlin would be a public figure for defamation purposes.
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of awareness of their probable falsity, or had serious doubts as to the truth of [the]
publication. Id. at 1043-44 (citing various Supreme Court cases). He does not even come
close.
Kimberlin makes no state-of-mind allegations at all as to The Blaze or MRA, and his
mental state allegations relating to Mr. Beck are completely speculative. Kimberlin claims that
Mr. Beck knew of [sic] should have known the[] [statements] were false because he
supposedly did not conduct due diligence, and acted with a reckless disregard for the truth
because he did not follow some unspecified journalistic standards that purportedly require
anyone reporting on Kimberlin to give him the opportunity to respond to any allegations. (Cplt.
91.) But Kimberlin offers no factual support in the Complaint or in his Opposition Brief for
these bald assertions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged); Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 377
(4th Cir. 2012).
Kimberlin cites no journalistic standards or any authority for the proposition that Mr.
Beck was obligated to provide Kimberlin with the opportunity to respond to an allegation of
wrongdoing. He cites nothing to suggest that the Blaze Defendants cannot permit the
discussion of an issue of public concern on a news program. Kimberlin relies on standards that
do not exist to try to shoehorn legitimate news reporting that he dislikes into a false light claim.
His allegations amount to [t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, Iqbal, 556 U.S. at 678, which are insufficient to state a claim.
And even if he had included specific factual allegations on the journalistic standards or
opportunity to respond points, they would still fall far short of being able to plead

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constitutional malice as a matter of law. See Beckley Newspapers Corp. v. Hanks, 389 U.S. 81,
84-85 (1967) (failure of petitioner to make a prior investigation did not constitute proof
sufficient to present a jury question whether the statements were published with reckless
disregard of whether they were false or not) (citing New York Times Co. v. Sullivan, 387 U.S.
254, 287-88 (1964)).
In addition, the facts of this case as Kimberlin has stated them could not plausibly lead to
the conclusion that the Blaze Defendants acted with actual malice. There is an extensive public
record detailing Kimberlins criminal record, his clashes with his critics, and his dishonesty
(including commission of perjury, see United States v. Kimberlin, 805 F.2d 210, 234 (7th Cir.
1986)). Given what the Blaze Defendants knew about Kimberlin from the historical record, they
would have had no reason to believe much less know that any statements made by Mr. Frey
or Mr. Walker were false (and the Blaze Defendants do not believe they were). Further, the
Blaze Defendants engaged in legitimate reporting of victims personal accounts of a crime, and
those victims theories, and cannot be held liable for this speech. See Capital-Gazette
Newspapers, Inc., 445 A.2d at 1044 (actual malice cannot even be proved by showing that a
publisher acted in reliance on the unverified statement of a third party without personal
knowledge of the subject matter of the defamatory statement) (emphasis added); see also
Garrison v. State of Louisiana, 379 U.S. 64, 73-74 (1964) (listing types of facts that fail to rise to
level of establishing malice).
Finally, Kimberlin argues that the recent decision in Alharbi v. The Blaze, Inc., No. 1:14CV-11550 (D. Mass. Dec. 2, 2014), which denied a Rule 12(b)(6) motion to dismiss a
defamation claim, supports his position that he can state a claim for false light against the Blaze
Defendants. (Opp. Br. at 12.) Contrary to what Kimberlin claims, Alharbi is not similar to

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this matter and has no bearing on this case. As an obvious (but fundamental) point, it is absurd
to suggest that a different courts denial of a motion to dismiss, based on different pleaded
allegations in a different case in a different venue, somehow renders that ruling conclusive in this
case. Moreover, it is inapt: the ruling on the defamation claim under Massachusetts law has no
bearing on the Courts task here, which is to evaluate Kimberlins claim for false light under
Maryland law based on his allegations in this case.
D.

Kimberlin Was Not Portrayed in a Worse Light than Before The Statements at
Issue Were Made, and Therefore He Does Not Plausibly Allege that the Blaze
Defendants Caused Him Any Injury
As with any tort, Kimberlin must show injury and a causal nexus between the Blaze

Defendants conduct and the alleged injury. See Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d
199, 207 (4th Cir. 2009). He cannot show either requirement here.
Given Kimberlins widely publicized criminal history and his undisputed feuds with (and
harassment of) bloggers, (see, e.g., Cplt. 38, 43, 56, 58, 59, 82; Opp. Br. at 5, 6, 40, 41, 42),
Kimberlin cannot plausibly allege to have been injured by statements the Blaze Defendants may
have made or otherwise facilitated long after his reputation was solidified. In addition, the
discussion of swatting is a de minimis part of the bigger picture of Kimberlins past and
reputation given that he was already in the public eye for far worse than making fake phone calls
to the police. His attempt to self-servingly portray himself as one who has turned over a new
leaf is disingenuous (see, e.g., SAC 9, 153, 288; Opp. Br. at 6, 22), and his recent acts suggest
that his past history was bound to resurface anyway.
Kimberlins allegation of causation is that as a result of one article published on May
25, 2012, the State Department no longer brings [] activists to JTM. (Opp. Br. at 28 n.5; Cplt.
152.) This lone allegation is insufficient. See Iqbal, 556 U.S. at 678 ([T]he pleading standard

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Rule 8 announces . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.). The statements that purportedly caused this injury were true reports on
Kimberlins well-documented criminal past. The Blaze Defendants restatement of these facts
could not possibly have been the cause of any injury. See Archuleta v. City of Roswell, 898 F.
Supp. 2d 1240, 1256 (D.N.M. 2012) (holding that arrest records are information that is readily
available to the public, and therefore are not grounds on which an action for false light may lie).
The only injury that arguably flowed from the article is the hard realization that there is no right
to be forgotten, which is insufficient to state a claim against the Blaze Defendants, who have no
responsibility to protect Kimberlin from his own past.9
Similarly, discussions regarding swatting could not have caused harm to Kimberlin
considering the Internet was already abuzz with talk of swatting in connection with him and his
associates at least six months prior to the Blaze Defendants publications. (See Cplt. 82.) The
Blaze Defendants constituted only a small part of a much larger community of commentators
discussing Kimberlin on and before May 25, 2012 (see, e.g., Opp. Br. at 7-8), and Kimberlin
offers no plausible causal connection between the Blaze Defendants specific statements and
whatever injury he purports to have suffered.
CONCLUSION
The Blaze Defendants have been caught up in Kimberlins vast conspiracy theories for
long enough. Indeed, the Court encouraged Kimberlin nearly six months ago to voluntarily
dismiss those defendants who were unwittingly dragged into this brawl but had, in Kimberlins

Kimberlins allegation that he is no longer able to write music or produce videos or

documentaries because of the actions of the Defendants (see Opp. Br. at 20) is preposterous. It
is a matter of public knowledge that plenty of musicians, producers, directors, and other creators
have gone on to very successful careers despite the publics knowledge of their past brushes with
the law.
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words, no agendas. [See Dkt. No. 162 at 3 n.2.] Yet Kimberlin has shown no willingness to
release the Blaze Defendants notwithstanding their tangential involvement in the matters at bar.
Accordingly, the Blaze Defendants require this Courts intervention to achieve a result that
should have reached long ago with Kimberlins cooperation.
For the reasons discussed above, and for those stated in the Blaze Defendants Motion to
Dismiss, Kimberlins Second Amended Complaint should be dismissed in its entirety, with
prejudice and with an award of fees and costs, 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
January 8, 2015

Respectfully submitted,
COWAN DeBAETS ABRAHAMS
& SHEPPARD LLP
By: /s/ Eleanor M. Lackman
.
Eleanor M. Lackman (pro hac vice)
41 Madison Avenue, 34th Floor
New York, New York 10010
Tel: (212) 974-7474
Fax: (212) 974-8474
ELackman@cdas.com
Mark I. Bailen
BAKER & HOSTETLER LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Tel: (202) 861-1500
Fax: (202) 861-1763
MBailen@bakerlaw.com
Attorneys for defendants The Blaze Inc.,
Mercury Radio Arts, and Glenn Beck

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