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Appeal: 15-1412

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Filed: 06/03/2015

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In The
United States Court of Appeals
For The Fourth Circuit
BRETT KIMBERLIN
Appellant,
v.

No. 15-1412

NATIONAL BLOGGERS CLUB et al


Appellees.

APPELLEES DAN BACKER AND DB CAPITOL STRATEGIES PLLC


MOTION FOR SANCTIONS FOR FILING A FRIVOLOUS APPEAL
Appellees Dan Backer (Backer) and DB Capitol Strategies PLLC
("DBCS"), through counsel, submit this Motion for Sanctions for Filing a Frivolous
Appeal and respectfully request this Court find Appellants appeal frivolous and
award Appellees Backer and DBCS just damages and double costs, including
attorneys fees, under Fed. R. App. P. Rule 38.

GROUNDS
Federal Rule of Appellate Procedure Rule 38 provides [i]f a court of appeals
determines that an appeal is frivolous, it may, after a separately filed motion or notice
from the court and reasonable opportunity to respond, award just damages and single
or double costs to the appellee. This Court has found just damage and costs

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include damages, attorneys fees, and other expenses incurred by appellee. Brock
v. Angelone, 105 F.3d 952, 954 (4th Cir.1997) (internal citations omitted).
In considering a motion for sanctions for filing a frivolous appeal, a court must
first determine if the appeal is frivolous and then determine if sanctions are
appropriate. Property Movers, L.L.C. v. Goodwin, 31 Fed. Appx. 81, 84 (4th Cir.
2002) (internal citations omitted). An appeal is frivolous when the appellants
argument is wholly without merit and the result is obvious, such as where the
appellant cites no cases in response to the district courts accurate analysis of the law
and where the argument is irrelevant to the issues in dispute. Id. In the context of a
RICO claim, sanctions are appropriate where given the complete deficiency of a
properly pleaded RICO claim, dismissal of [appellants] claims was not only correct,
but required. Bast v. Cohen, Dunn, & Sinclair, PC, 59 F.3d 492, 496 (4th Cir. 1995).
In appropriate cases, sanctions are desirable to compensate the prevailing party for
the expense of defending a wholly meritless appeal. Property Movers, 31 Fed. Appx.
at 84.
Appellants appeal is frivolous and sanctions are appropriate in this case,
similar to Bast, where given the complete deficiency of Appellants RICO claim,
dismissal of Appellants claims was not only correct, but required. Appellants
argument is wholly without merit, and the result of Appellants appeal is obvious.
Appellant has cited no cases that contradict the District Courts accurate analysis of
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the law. Instead, Appellant has only made arguments irrelevant to the grounds for
appeal, such as his lack of discovery prior to the District Courts dismissal of the
case at the pleading stage. Appellant also intentionally misconstrues outdated case
law by claiming a privilege to avoid even the most basic pleading requirements as a
pro se litigant and to construct a basis for his appeal.
Sanctions are appropriate to compensate Backer and DBCS for having to yet
again defend a wholly meritless court filing by the Appellant. This Court has granted
sanctions where an appellant has shown himself to be extremely litigious. Mitrano
v. Warshell, 150 Fed. Appx. 277, 280 (4th Cir. 2005)(finding sanctions appropriate
where the appeal considered together with all connected litigation and the
appellants conduct in unrelated lawsuits established a clear pattern of harassing
lawsuits and abusive behavior). Here, the Appellant is extremely litigious
comparable to the Mitrano appellant. In addition to the District Court case in
question, Appellant has filed numerous federal and state lawsuits against many of
the same individuals now Appellees in this case on substantially the same issues. See
Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013) (where
Appellant himself admitted, in ECF No. 175, that the issues between the federal and
state case were similar and the Maryland state court directed a final judgment on the
merits unfavorable to Appellant). In addition to the District Court in question noting
the underlying suit is the latest in a protracted series of disputes between and among
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the parties here (ECF No. 97 at 1), multiple judges have noted the ongoing bitter
dispute between Appellant and many of the Appellees. See Walker v. Kimberlin, No.
8:12-cv-01852-JFM (U.S. Dist. Court Dist. of Md. 2012) (I deem it unwise to
intervene in the bitter political disputes between the parties). Further, in the past
five years, Appellant has filed a total of four lawsuits in the Maryland state courts
and six lawsuits in federal courts. See PACER Case Locator, Public Access to Court
Electronic Records, https://pcl.uscourts.gov/search (last visited June 3, 2015);
Maryland

Judiciary

Case

Search,

Maryland

Courts,

http://casesearch.courts.state.md.us/casesearch/processDisclaimer/jis (last visited


June 3, 2015) (Search Party Name) for Kimberlin, Brett). Appellants filing of
this frivolous appeal considered together with all connected litigation and the
appellants conduct in unrelated lawsuits established a clear pattern of harassing
lawsuits and abusive behavior warranting sanctions.

RELIEF REQUESTED
For the reasons stated herein, Appellees Backer and DBCS respectfully
request that this Court determine Appellants appeal is frivolous and award
Appellees Backer and DBCS just damages and double costs, including attorneys
fees, under Fed. R. App. P. Rule 38.

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Dated: June 3, 2015


Respectfully submitted,
/s/__________________________
Christina Pauline Sirois
DB Capitol Strategies PLLC
203 South Union Street Suite 300
Alexandria, Virginia 22314
(571) 207-6451 Direct
(202) 478-0750 Fax
csirois@dbcapitolstrategies.com

Counsel for Dan Backer and


DB Capitol Strategies PLLC

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CERTIFICATE OF SERVICE
I hereby certify that, on this Wednesday, June 3, 2015, a true and correct copy
of the foregoing Appellees Dan Backer and DB Capitol Strategies PLLC Motion for
Sanctions for Filing a Frivolous Appeal was served on all parties or their counsel of
record through the CM/ECF system and was emailed, by previous agreement of the
Parties, to Appellant and Appellees Hoge, McCain, Stranahan, and Walker.

/s/_____________________________
Christina Pauline Sirois
DB Capitol Strategies PLLC
203 South Union Street Suite 300
Alexandria, Virginia 22314
(571) 207-6451 Direct
(202) 478-0750 Fax
csirois@dbcapitolstrategies.com

Counsel for Dan Backer and


DB Capitol Strategies PLLC

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