RICO Motion to Dismiss Memorandum (OCR)

8/13/2019 RICO Motion to Dismiss Memorandum (OCR)

http://slidepdf.com/reader/full/rico-motion-to-dismiss-memorandum-ocr 1/95

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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT

WALKER’S MOTION TO DISMISS



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TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ARGUMENT 1

I. THE PLAINTIFF HAS NOT STATED A CLAIM THAT THE DEFENDANTS HAVEVIOLATED 18 U.S.C. §1962(C) 7

A. The Plaintiff Has Not Properly Alleged that the Defendants Engaged in RacketeeringActivity 8

1. The Plaintiff Has Not Alleged a Violation of 18 U.S.C. §§1503, 1510 and 1511

9

2. The Plaintiff Has Not Alleged that Defendants Committed or Attempted toCommit Extortion in Violation of 18 U.S.C. §1951 11

3. The Plaintiff Has Not Alleged that Defendants Committed Wire or Mail FraudUnder 18 U.S.C. §§1341 and 1343 12

(A) The Plaintiff Has Not Alleged Any Fraud Related to NBC’s §501(c)(3)Status 13

(B) The Plaintiff Has Not Alleged Any Fraud Related to the SWATting of

Defendants Walker, Frey and Erickson 16

(C) The Plaintiff Has Not Alleged Any Fraud Related to the Loss of Mr.Walker’s Job 20

(D) The Plaintiff Has Not Alleged Any Fraud Related to Mr. Walker’s AllegedAssault Against the Plaintiff 21

4. The Plaintiff Has Not Properly Alleged that Defendants Committed MoneyLaundering under 18 U.S.C. §1957 23

5. The Plaintiff Has Not Alleged that Defendants Committed Retaliation Against aWitness and Victim in Violation of 18 U.S.C. §1513 24

B. The Plaintiff has not Properly Alleged that the Claimed Pattern of Racketeering ActivityHas Sufficient Continuity 26

C. The Plaintiff has not Properly Alleged that an Enterprise Exists 27



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D. The Plaintiff has Not Properly Alleged that the Asserted Racketeering Activity HasProximately Caused Injury to Plaintiff’s Business or Property 30

II. THE PLAINTIFF HAS NOT STATED A CLAIM THAT THE DEFENDANTS HAVECONSPIRED TO VIOLATE 18 U.S.C. §1962(C) IN VIOLATION OF §1962(D) 31

III. THE PLAINTIFF HAS NOT PROPERLY ALLEGED A VIOLATION OF 42 U.S.C. §1983AGAINST DEFENDANT FREY 32

IV. THE PLAINTIFF HAS NOT ALLEGED A VIOLATION OF 42 U.S.C. §1985 34

A. The Plaintiff has Not Alleged a Violation of 42 U.S.C. §1985(3) 35

B. The Plaintiff has Not Alleged a Violation of 42 U.S.C. §1985(2) 35

V. THIS COURT SHOULD DISMISS ALL STATE-BASED CLAIMS 38

A. The Plaintiff’s State-Based Claims Should be Dismissed Because There is No ValidFederal Question 39

B. This Court Should Decline to Exercise Supplemental Jurisdiction in the Interests ofJustice 39

C. The Plaintiff has Failed to State a Claim for Upon Which Relief Can Be Granted For Anyof His State Law Claims 40

1. The Plaintiff Doesn’t Have Standing for Any Claim for Common-Law Fraud40

2. The Plaintiff Doesn’t Properly State a Claim for Defamation or False LightWithin the Statute of Limitations 41

3. The Plaintiff Doesn’t Properly State a Claim for Intentional Infliction ofEmotional Distress 45

4. The Plaintiff Never Properly Alleges He Was Damaged in Any of His State LawClaims 48

CONCLUSION 48



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TABLE OF AUTHORITIES

FEDERAL CASES

Al-Abood v. El-Shamari, 217 F. 3d 225 (4th Cir. 2000) 3, 8, 27, 31

Ashcroft v. Iqbal , 556 U.S. 662 (2009) 2, 7, 13, 23, 25, 28, 48

Beck v. Prupis, 529 U.S. 494 (2000) 31

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 28

Brandenburg v. Ohio, 395 U.S. 444 (1969) 37, 46

Carpenters v. Scott , 463 U.S. 825 (1983) 35, 35

Crowley v. Fox Broadcasting Co., 851 F.Supp. 700 (D. Md., 1994) 42, 45

DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (1989) 34

GE Investment Private Placement Partners v. Parker , 247 F.3d 543 (4th Cir., 2001) 27

Griffin v. Breckinridge, 403 U.S. 88, 102 (1971) 35

Kimberlin v. Dewalt , 12 F. Supp. 2d 487 (D. Md. 1998) 2, 39, 42

Kimberlin v. DOJ , 788 F. 2d 434 (7th Cir. 1986) 42

Kimberlin v. White,7 F. 3d 527 (6th Cir. 1993) 1, 21, 42

Kimberlin v. Quinlan, 6 F. 3d 789 (D.C. Cir. 1993) 45

Kush v. Rutledge, 460 U.S. 719 (1983) 37

Naffe v. Frey et al. (C.D. California, 2012) case number 2:12-cv-08443-GW-MRW 32

NYT v. Sullivan, 376 U.S. 254 (1964) 45

Pelletier v. Zweifel , 921 F. 2d 1465 (11th Cir.1991) 12-13

Phillips v. LCI International , 190 F.3d 609 (4th Cir. 1999) 13



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Salinas v. U.S., 522 U.S. 52 (1997) 31

Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) 11

Shields v. Citytrust Bancorp, Inc., 25 F. 3d 1124 (2nd Cir. 1994) 13

Smith v. Esquire, Inc., 494 F. Supp. 967 (D. MD, 1980) 45

U.S. v. Aragon, 983 F.2d 1306 (4th Cir. 1993) 10

U.S. v. Ardito, 782 F.2d 358 (2nd Cir. 1986) 10

U.S. v. Bledsoe, 674 F.2d 647 (8th Cir. 1982) 27-27

U.S. v. Kimberlin, 805 F. 2d 210 (7th Cir. 1986) 1, 42, 44

U.S. v. Shively, 927 F. 2d 804 (5th Cir. 1991) 25

U.S. v. Tillett , 763 F.2d 628 (4th Cir. 1985) 27

US Airline Pilots Ass’n v. AWAPPA, LLC , 615 F.3d 312 (4th Cir. 2010) 8

FEDERAL STATUTES

18 U.S.C. §1341 3, 8, 12, 22, 26

18 U.S.C. §1343 3, 8, 12, 22, 26

18 U.S.C. §1503 3, 8-10, 26

18 U.S.C. §1510 3, 8-10, 26

18 U.S.C. §1511 3, 8-10, 26

18 U.S.C. §1513 5, 9, 24, 26

18 U.S.C. §1513(a) 24

18 U.S.C. §1513(b) 24

18 U.S.C. §1515(a)(1) 25



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18 U.S.C. §1951 3, 8, 11-12, 26, 30

18 U.S.C. §1951(b) 11

18 U.S.C. §1956 23

18 U.S.C. §1956(c)(7)(A) 23

18 U.S.C. §1957 4, 9, 23-23, 26

18 U.S.C. §1961, et seq. 7

18 U.S.C. §1961(1) 3, 8, 10, 23, 26-26, 48

18 U.S.C. §1961(5) 3, 8-9, 26

18 U.S.C. §1962(c) passim

18 U.S.C. §1962(d) 2, 5-6, 31-32, 48

18 U.S.C. §1964(c) 30-31

26 U.S.C. §501(c)(3) 13-16, 22

28 U.S.C. §1367(a) 39

28 U.S.C. §1367(c)(3) 39

28 U.S.C. §1367(c)(4) 39

42 U.S.C. §1983 2, 6, 32-34, 48

42 U.S.C. §1985 2, 34, 38,

42 U.S.C. §1985(2) 6, 34-37, 48

42 U.S.C. §1985(3) 6, 34-35, 37, 48

FEDERAL RULES

Fed. R. Civ. P. 9(b) 12, 14, 41



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Fed. R. Civ. P. 12(b)(6) 7

Fed. R. Evid. 408 (Advisory Committee Notes) 11

`

STATE CASES

Batson v. Shiflett , 325 Md. 684 (1992) 46

Jackson v. Longscope, 394 Mass. 577 (1985) 42, 44

Harris v. Jones, 281 Md. 560 (1977) 46

Kimberlin v. Allen, (Md. Mont. Co. Cir. Ct. 2011) case number 339254V 25, 36

Kimberlin v. Walker (I) (Md. Mont. Co. Dist. Ct. 2012) case number 0601SP005392012 21

Kimberlin v. Walker (II) (Md. Mont. Co. Dist. Ct. 2012) case number 0601SP019792012 36

Kimberlin v. DeLong , 637 N.E.2d 121 (Ind. Sup. Ct. 1994) 42

Leopold v. Levin, 45 Ill.2d 434 (1970) 44

Swate v. Schiffers, 975 SW 2d 70 (Tex. App., 4 th Dist. 1998) 42

Too Much Media, LLC v. Hale, 20 A. 3d 364 (N.J. Sup. Ct. 2011) 4

STATE STATUTES

MD CODE CRIM. LAW. §3-307 25, 47

MD CODE CTS. & JUD. PROC. §9-104 39

MD CODE CTS. & JUD. PROC. §5-108 41

ARTICLES AND BOOKS

A.O. Scott, Cody Shearer: If He Didn’t Exist, the Vast Right Wing Conspiracy Would Have Invented

Him, SLATE, May 22, 1999 (available at http://www.slate.com/articles/news_and_politics/assessment/



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1999/05/cody_shearer .html) visited December 7, 2013 43

Carol D. Leonnig, IRS Stalled Conservative Groups, But Gave Speedy Approval to Obama Foundation,WASHINGTON POST, May 16, 2013 (available at http://articles.washingtonpost.com/2013-05-16/politics/39310148_1_tax-exempt-status-foundation-application) visited December 8, 2013 14

Mark Singer, CITIZEN K: THE DEEPLY WEIRD AMERICAN JOURNEY OF BRETT K IMBERLIN (1996) 43

Monica Hesse, A Little Surprise For the Prize-Giver , WASHINGTON POST, November 8, 2007 (availableat http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/AR2007110702898.html) visitedDecember 7, 2013 45

R. Joseph Gelarden, Kimberlin Case a Maze of Murder, Deceit , I NDIANAPOLIS STAR , October 18, 1981at 1 (available at http://archive.indystar.com/assets/pdf/BG164276919.PDF) visited on December 7,2013 43

RetroIndy: The Speedway Bombings, Part I: For a Week in 1978, the Town of Speedway was Terrorized

by a Serial Bomber , I NDIANAPOLIS STAR , (available at http://www.indystar.com/article/99999999/ NEWS06/100919012/) visited December 7, 2013 43

RetroIndy: The Speedway Bombings, Part II: Building the Case Against Brett Kimberlin I NDIANAPOLIS

STAR , (available at http://www.indystar.com/article/99999999/NEWS06/100919013) visited December7, 2013 43

WEBSITES

Alleged, undated, scan of letter announcing the creation of the National Bloggers Club, by Ali Akbar,(available at https://www.lsnewsgroup.com/wp-content/uploads/2013/01/NBC-Feb-9-2012-Letter.pdf )visited December 7, 2013 14

Alleged, undated, donation page for a scholarship fund for Andrew Breitbart’s children, authorunknown, (available at https://secure.piryx.com/donate/c97AfwVc/Remembering-Breitbart/) visitedDecember 7, 2013 15

Application for Recognition of Exemption, Nov. 26, 2013, (available at http://www.irs.gov/Charities-&- Non-Profits/Application-for-Recognition-of-Exemption), visited on November 24, 2013 15

Bloggers Work to Debunk Brett Kimberlin’s New Claim That he was a SWAT-ting Victim, June 11,2012, (available at http://twitchy.com/2012/06/11/bloggers-work-to-debunk-brett-kimberlins-new-claim-that-he-was-a-swat-ting-victim/) visited December 7, 2013 4

Lee Stranahan, My Epic Day of Video Blogging From Beirut , September 28, 2013,( available athttp://leestranahan.com/my-epic-day-of-video-blogging-from-beirut/) visited December 7, 2013 4



INTRODUCTION AND SUMMARY OF ARGUMENT

The Defendants include several victims of a dangerous crime called SWATting. The term is

relatively new and therefore its definition can be debated, but in the case of the Defendants Walker, Frey

and Erickson, this is what happened, upon information and belief. Someone called the police on

different dates, impersonating one of the defendants. In most, if not all cases, they used a “hacker”

technique to fool emergency services into believing they were calling from that Defendant’s phone

number. And in each case, that person impersonating a defendant falsely confessed to murder—

specifically murdering their wives. In other words, someone called the police and said something to the

effect of “I’m Aaron Walker, and I just shot my wife.” The purpose of doing so is to invoke a severe

police reaction, potentially including a SWAT team, which is why it is called “SWATting” and why it is

spelled this way. This “trick” can be quite dangerous, as any reasonable person can imagine.

These people are victims of a crime, and all of them have reason to suspect that the Plaintiff was

involved. Upon information and belief, Frey, Walker, Erickson and a fourth person, Mike Stack, who is

not named in this suit, had all publicly criticized the Plaintiff, a convicted drug kingpin, U.S. v.

Kimberlin, 805 F.2d 210, 225, 233, 235 and 238 (7th Cir. 1986) and terrorist known as “The Speedway

Bomber,” Kimberlin v. White, 7 F.3d 527, 528 (6th Cir. 1993). They were all SWATted. Walker, in

particular, had won a legal victory against the Plaintiff on the same day he was SWATted. Further,

upon information and belief a person using an IP address associated with the Plantiff’s self-described

friend William Schmalfeldt threatened to SWAT Defendant William Hoge III (another critic of the

Plaintiff) on Halloween, 2012, and, later, a person seen arguing with Mr. Schmalfeldt on the internet

named Eric Rush was SWATted on the very evening of that argument. In other words, the Plaintiff is

suing victims of a crime in which there is good reason to suspect he is involved, for pointing out facts



2

such as those listed in the last two paragraphs. The Defendants have never accused the Plaintiff of these

crimes, but it is quite reasonable to believe he is responsible, with co-conspirators unknown. And this

open investigation might still produce an arrest warrant for the Plaintiff.

Unfortunately, as is the case in a motion to dismiss, this court is required to treat all well-pleaded

allegations by this convicted perjurer 1 as true. Still, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice[,]” and are not entitled to a presumption

of truth. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). As this court will see, many of the allegations are

only supported by such threadbare recitals, and others are not even supported by that. Entire elements of

many offenses are not even alleged in the most conclusory fashion.

The Plaintiff is alleging that various Defendants have violated The Racketeer Influenced and

Corrupt Organizations Act (“RICO”), 18 U.S.C. §1962(c) and (d); The Civil Rights Act of 1866,

codified as 42 U.S.C. §1983; sections of the Ku Klux Klan Act, codified as 42 U.S.C. §1985; and

scattered claims supported solely by state law: common law fraud, defamation, false light invasion of

privacy, and intentional infliction of emotional distress. However, the Plaintiff has not stated a claim for

which relief can be granted for any one these federal or state causes of action, and since there is no valid

federal question and this court cannot exercise diversity of citizenship jurisdiction over these parties,

there is no valid supplemental jurisdiction over the state law claims. For these reasons all claims against

all parties should be dismissed.

Starting with RICO, in order to make out a claim under 18 U.S.C. §1962(c) the Plaintiff must

allege that the Defendants 1) were employed or associated with 2) an enterprise that was 3) engaged in

or affected interstate or foreign commerce, and that the Defendants 4) conducted or participated in the

1 Kimberlin v. Dewalt , 12 F.Supp.2d 487, 490 n. 6 (D. Md 1998).



3

conduct of the enterprise’s affairs 5) through a pattern of racketeering activity, or the collection of

unlawful debt. In turn, under §1961(5) in order to show that there is a “pattern of racketeering activity”

the Plaintiff must show that the defendants committed at least two of the crimes listed in §1961(1)

within the last ten years (excluding imprisonment), and that the acts “are related and that they constitute

or pose a threat of continued criminal activity.” Al-Abood v. El-Shamari, 217 F.3d 225, 238 (4th Cir.

2000). The Plaintiff has not met any of these elements.

First, the Plaintiff doesn’t properly allege a single predicate act. In reference to the first four

alleged predicate acts, it appears that the Plaintiff has not even read the statutes in question. First, he

claims the Defendants violated 18 U.S.C. §1503 relating to the obstruction of federal proceedings, but

fails to allege this conduct was aimed as obstructing a federal proceeding. Second, he asserts that the

Defendants violated 18 U.S.C. §1510 related to the use of bribery to obstruct federal investigations, but

never once alleges that any bribery occurred. Third, he asserts that the Defendants violated 18 U.S.C.

§1511, which deals with obstruction of justice “with the intent to facilitate an illegal gambling

business,” but the Plaintiff never mentions gambling at all in the amended complaint.2 Likewise the

Plaintiff’s claim that the Defendants violated 18 U.S.C. §1951 by attempted extortion fails because the

“extortion” consists solely of attempting to peaceably settle a lawsuit.

Meanwhile, the Plaintiff makes well over a dozen claims that various defendants committed wire

and mail fraud in violation of 18 U.S.C. §§1341 and 1343 by writing negative stories about the Plaintiff

2 The Plaintiff has filed an original complaint and an amended complaint, but the original complaint

does not need to be separately addressed because 1) it is superseded by the amended complaint, and 2) it

has all of the flaws of the amended complaint and more. Therefore this motion to dismiss and

memorandum will focus on the First Amended Complaint and all references to the Plaintiff’s complaints

are to the Plaintiff’s First Amended Complaint unless otherwise noted.



4

or making other claims on their websites and blogs.3 In many cases, the Plaintiff doesn’t state with

particularity who said what, when and where. In many cases, the Plaintiff admits that the quoted

material contains no false statement of fact. In almost every case the Plaintiff doesn’t allege that they

were made with knowledge that the statement (or implication) was false. In every case, the Plaintiff

doesn’t assert that the allegedly false statements (or implications) were material, made with the intent to

deceive another and knowledge that they were false, inducing justifiable reliance in anyone and thus

proximately causing damage to anyone, including the Plaintiff. Thus the Plaintiff has not properly

alleged even one instance of mail or wire fraud as a predicate offense under 18 U.S.C. §1962(c).

Likewise, the Plaintiff claims that Defendants committed money laundering in violation of 18

U.S.C. §1957 by engaging in transactions involving the proceeds of such wire and mail fraud. Having

failed to allege wire and mail fraud, the Plaintiff necessarily has not properly alleged that any transaction

occurred using money derived from such fraud. In addition to that, the Plaintiff doesn’t allege that the

transactions were carried out by a United States person or a person in the United States at the time, while

he offers only conclusory allegations that the amounts of such transactions were greater than $10,000

3 Most of the non-corporate Defendants would call themselves bloggers and several corporate

Defendants primarily exist to operate blogs. “A blog is a type of personal column posted on the

Internet.... Some blogs are like an individual’s diary while others have a focused topic, such as recipes or

political news.” Too Much Media, LLC v. Hale, 20 A.3d 364, 369 n. 1 (N.J. Sup. Ct. 2011). Thus, it is a

specific kind of website and the nature of its content depends on its authors and thus can be quite

diverse. Some contain real journalism. See e.g. Lee Stranahan, My Epic Day of Video Blogging From

Beirut , September 28, 2013, (available at http://leestranahan.com/my-epic-day-of-video-blogging-from- beirut/) visited December 7, 2013 (discussing the plight of Syrian Christians displaced by civil war) and

Bloggers Work to Debunk Brett Kimberlin’s New Claim That he was a SWAT-ting Victim, June 11,

2012, (available at http://twitchy.com/2012/06/11/bloggers-work-to-debunk-brett-kimberlins-new-

claim-that-he-was-a-swat-ting-victim/) visited December 7, 2013 (discussing the Plaintiff’s claim that he

was SWATted and evidence that this claim was false). A person who writes for a blog is called a

blogger.



5

and those allegations must therefore be disregarded. Therefore, the Plaintiff has failed to properly allege

any element of the offense of money laundering and this cannot be considered a predicate offense.

Meanwhile, the Plaintiff claims that the Defendants allegedly violated 18 U.S.C. §1513 by

retaliation against an alleged witness and victim. However, §1513 requires 1) violence or a threat of

violence to a person or property, and 2) that such violence or threat is related to a federal proceeding

under the statute. The Plaintiff fails to allege a single act that meets both of those requirements, and

therefore this cannot be considered a predicate offense.

Thus, the Plaintiff has failed to allege two or more predicate offenses, as required to prove that a

pattern of racketeering activity exists, and further, the Plaintiff doesn’t properly allege that these acts

pose a threat of continued criminal activity. This is allegedly a single goal enterprise, with a single

identified victim, and therefore it does not “pose a special threat to social well-being” as a traditional

RICO association-in-fact enterprise such as a mafia family or a terrorist organization would. Indeed, the

Plaintiff has not alleged that an enterprise exists, except in a purely conclusory fashion. There is only

the slightest and most conclusory attempt to claim that there is any kind of continuity of structure and

personality and that the participants maintain some kind of common purpose. Indeed, the Plaintiff

seems to have had no rhyme or reason for deciding who is and is not a member of this enterprise.

Finally, the Plaintiff has failed to allege, except in the most conclusory fashion, that he has been injured

in his property or his business by such alleged racketeering activity. Thus, the Plaintiff has failed to

properly allege an enterprise exists, that any defendants have engaged in a pattern of racketeering

activity, or that such activity harmed him in his property or business. Therefore, his claim that any

Defendants have violated 18 U.S.C. §1962(c) should be dismissed with prejudice.

Meanwhile, under §18 U.S.C. §1962(d), the Plaintiff must allege sufficient facts, if taken as true,



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that would to lead this court to believe that: (1) an enterprise exists or that it would have existed if the

offense was completed, (2) that the enterprise was or would engage in, or affect interstate or foreign

commerce; (3) that each Defendant knowingly agreed that a conspirator would commit a violation of

§1962(c), and (4) that a racketeering activity was committed as an overt act in furtherance of that

agreement (5) proximately causing the Plaintiff harm in his business or property. The Plaintiff makes

virtually no effort to even allege that these elements exist, at most throwing the word “conspired”

around now and then in a conclusory fashion. Therefore, the Plaintiff has not properly alleged a

violation of §1962(d) and this claim should be dismissed with prejudice.

Next, the Plaintiff alleges Defendants committed violations of 42 U.S.C. §§1983 and 1985(2) or

(3). In relation to §1983, the Plaintiff must allege that a person, acting under color of state law, deprived

the Plaintiff of any right guaranteed by the U.S. Constitution or federal law. The Plaintiff attempts to

claim Defendant Frey’s conduct constitutes such state action that violated his federal rights, but fails in

the attempt. Meanwhile, under the first part of §1985(2) the Plaintiff must allege that the conduct relates

to a federal proceeding; the Plaintiff doesn’t do this. The second part of §1985(2) and the first two parts

of §1985(3) require the Plaintiff to show that the Defendants were motivated by invidious discriminatory

animus, but such animus has not even been alleged. The final part of §1985(3) relates to federal

elections and the Plaintiff has not alleged such a nexus. Therefore, the Plaintiff has failed to properly

allege a violation of §§1983 or of 1985(2) or (3) and these claims should be dismissed with prejudice.

Meanwhile, the Plaintiff has only asserted that this court had supplemental jurisdiction over his

state law claims. With every claim based on federal law falling short, this court no longer has original

jurisdiction. Therefore, this court should dismiss the state law claims for want of jurisdiction. Indeed

declining such jurisdiction is in the interest of justice.



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Further, the Plaintiff doesn’t state a claim for which relief can be granted for any state law claim.

First, the Plaintiff doesn’t have standing to claim that the Defendants allegedly defrauded third parties;

let those people bring suit, if they are so inclined. Second, the majority of the Plaintiff’s claims for

defamation and false light invasion of privacy is barred by the statute of limitations, and the Plaintiff

never cites with particularity a single instance of a person making a false statement within the limitations

period. And in any case, the Plaintiff, a convicted terrorist, has a reputation so poor it is incapable of

being further harmed. Additionally, the Plaintiff fails to properly allege the elements of intentional

infliction of emotional distress, including that 1) the conduct is extreme and outrageous, 2) that it

actually caused the distress he complains of, or 3) even that the Plaintiff has felt any distress at all.

Finally the Plaintiff has failed to allege he was injured in relation to any of his state law claims.

In short, the Plaintiff has not properly alleged a single cause of action. Therefore, Defendant

Walker moves that this court dismiss all federal law claims for failure to state a claim for which relief

can be granted and to dismiss all state law claims based on either want of jurisdiction or for failure to

state a claim for which relief can be granted.

I.

THE PLAINTIFF HAS NOT STATED A CLAIM THAT THE DEFENDANTS HAVE

VIOLATED 18 U.S.C. §1962(C).

A complaint can only survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6) if the Plaintiff

properly alleges sufficient facts, that if true, would state a claim upon which relief can be granted. As

the Supreme Court cautioned in Ashcroft v. Iqbal , “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” 556 U.S. 662, 678 (2009). In many

cases, the Plaintiff has failed to even do that much.

The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1961, et seq., “is a unique



8

cause of action that is concerned with eradicating organized, long-term, habitual criminal activity.” US

Airline Pilots Ass’n v. AWAPPA, LLC , 615 F.3d 312, 317 (4th

Cir. 2010). Thus 18 U.S.C. §1962(c)

contains the following elements, each of which must be alleged: (1) a person (2) employed by or

associated with (3) any enterprise (4) engaged in, or the activities of which affect, interstate or foreign

commerce, (5) conducts or participates, directly or indirectly, in the conduct of such enterprise’s affairs

(6) through a pattern of racketeering activity or collection of unlawful debt.4 The Plaintiff has not

properly alleged that the Defendants have engaged in a pattern of racketeering activity, that the

Defendants committed two or more predicate acts, or that this alleged conduct “constitute[s] or pose[s] a

threat of continued criminal activity.” Al-Abood , 217 F.3d at 238. Additionally, the Plaintiff has failed

to allege facts that would lead this court to believe that an enterprise exists. Finally, the Plaintiff fails to

properly allege he was damaged in his business or property by the predicate acts. In short, the Plaintiff

has utterly failed to properly allege a violation of §1962(c).

A. The Plaintiff Has Not Properly Alleged that the Defendants Engaged in Racketeering

Activity.

Under 18 U.S.C. §1961(5) the term “pattern of racketeering activity” requires (in relevant part)

“at least two acts of racketeering activity.” “Racketeering activity,” in turn, is defined in §1961(1) as a

specific laundry list of federal and state crimes. In the instant case, the Plaintiff asserts that the

following crimes allegedly constitute racketeering activity:

1) Obstruction of Justice under 18 U.S.C. §§1503, 1510 and 1511,

2) Extortion under 18 U.S.C §1951,

3) Mail and Wire Fraud in violation of 18 U.S.C. §§ 1341 and 1343,

4 The Plaintiff makes no allegation that the Defendants attempted to collect an unlawful debt and

therefore this element will be ignored going forward.



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4) Money Laundering under 18 U.S.C. §1957, and

5) Retaliation Against a Witness and Victim under 18 U.S.C. §1513.

In the case of Obstruction of Justice, Extortion and Retaliation against a Witness and Victim, the

statutes cited simply do not relate to what the Defendants have allegedly done. In relation to Mail and

Wire Fraud, the errors the Plaintiff has made are legion, often failing to make particularized allegations,

failing to identify any false statements, almost always failing to allege knowledge of falsity and in every

case failing to allege the elements of materiality, mens rea, justifiable reliance by any third party or that

such reliance caused the Plaintiff damage. Finally, in relation to money laundering, the Plaintiff doesn’t

properly allege that the money was the proceeds of illegal activity, that the transactions took place in

America or involved a United States person, or that the transactions involved an amount of more than

$10,000. In other words, the Plaintiff has failed to allege a single predicate offense supporting an

allegation of a pattern of racketeering activity, let alone the two required by §1961(5).

1. The Plaintiff Has Not Alleged a Violation of 18 U.S.C. §§1503, 1510 and 1511.

The entirety of the Plaintiff’s claim of obstruction of justice is as follows. First, the Plaintiff

claims that unnamed Defendants allegedly lied to federal and state law enforcement by “falsely accusing

Plaintiff of [SWATting]” and supposedly providing “false evidence to the FBI and state and local law

enforcement officials asserting that Plaintiff was involved in the [SWATtings].” Amend. Comp. ¶131.

The Plaintiff similarly claims it was obstruction of justice to allegedly make similar claims to various

Congresspersons. ¶132. Further, the Plaintiff makes a conclusory allegation that unnamed defendants

“threaten[ed] Plaintiff and caus[ed] threats of injury and death to be directed at Plaintiff in order to

intimidate him from cooperating with law enforcement officials and from exercising this right to seek

legal redress” and supposedly causing threats to be made to state officials and judges. ¶134.



10

Such acts, if they were actually committed, would be reprehensible, but they would not be illegal

under 18 U.S.C. §§1503, 1510 and 1511. For instance, §1503 relates wholly to violence and

intimidation aimed at federal jurors, federal judges, federal magistrate judges, federal committing

magistrates, or various officers of or in a federal court, or to obstruct the federal courts in general. See,

e.g. U.S. v. Ardito, 782 F.2d 358 (2nd Cir., 1986); cited with approval in U.S. v. Aragon, 983 F.2d 1306

(4th Cir. 1993). The Plaintiff has failed to even allege, in conclusory fashion or otherwise, that he or any

of the victims of the Defendants’ alleged conduct had any relation to any federal case at all.

Likewise, §1510 imposes criminal liability only if the accused obstructs a criminal investigation

“by means of bribery.” The Plaintiff has not even alleged in the barest fashion that any of the

defendants bribed anyone, period. Therefore the statute simply doesn’t apply to his allegations.

Finally, §1511 states that its prohibitions must be carried out “with the intent to facilitate an

illegal gambling business.” This court would look in vain through the Plaintiff’s original complaint or

amended complaint to find any reference to gambling at all.

Therefore, the Plaintiff has failed to even allege that the Defendants have engaged in the

“racketeering activity” of obstruction of justice under 18 U.S.C. §§1503, 1510 or 1511. These statutes

simply don’t relate to what the Plaintiff is alleging to have happened at all.5 Therefore, the Plaintiff has

not alleged a violation of §§1503, 1510 or 1511 in even the most improper and conclusory fashion, and

cannot claim that the Defendants have engaged in “racketeering activity” by citing those statutes.

5 Indeed, one gets the impression that the Plaintiff simply looked at the general descriptions of these

statutes contained in §1961(1) and, based solely on those descriptions, he decided that these were the

appropriate statutes to cite, without any examination of the text of any one of them.



11

2. The Plaintiff Has Not Alleged that Defendants Committed or Attempted to CommitExtortion in Violation of 18 U.S.C. §1951.

The Plaintiff fails to name which specific Defendants have allegedly engaged in this conduct, but

he probably means Defendants Walker and DB Capital Strategies, because they were the only

Defendants involved in a Federal suit. The entirety of his extortion allegation is contained in paragraph

139 where the Plaintiff alleges that Defendants filed a “malicious” federal lawsuit against the Plaintiff

and a non-profit that employs the Plaintiff. Then in settlement negotiations, these Defendants allegedly

made a settlement offer seeking the Plaintiff’s dismissal from employment and certain business

documents. This very ordinary settlement demand, the Plaintiff claims, is extortion in violation of 18

U.S.C. §1951.

However, §1951(b) defines extortion as “the obtaining of property from another, with his

consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of

official right.” A lawsuit is not the kind of inducement that violates this statute. The Plaintiff didn’t

allege that there was any use of actual or threatened force, violence or fear as those terms are understood

in the statute. And since these Defendants are not government officials, it cannot be said that they

would be doing so under official right. What we have here, from the Plaintiff’s allegations, is nothing

more than a peaceable offer to settle a case, which is not only legal and common, but actively

encouraged by public policy. See e.g. Advisory Committee Notes on Fed. R. Evid. 408 (describing “the

public policy favoring the compromise and settlement of disputes.”)6

Further, dismissal from a job is not “property” under §1951. In Scheidler v. National

6 Once again, one gets the feeling that the Plaintiff simply looked at the description given to the statute

in §1961(1) and didn’t bother to read the statute to determine if it actually applied to what he alleged had

occurred.



12

Organization for Women, Inc., 537 U.S. 393 (2003), the Supreme Court confronted an allegation that

abortion protesters had engaged in a pattern of racketeering activity by allegedly using force and

violence to prevent women from obtaining access to abortion clinics. The Supreme Court rejected this

argument, stating that in order for the thing that is being sought to be considered “property” under

§1951, it must be “something of value” that the accused can “obtain” and, therefore, “exercise, transfer

or sell.” Id. at 405. That does not describe dismissal from a job, and therefore pressure to fire a person

is not extortion under §1951. Having failed to allege the correct kind of unlawful pressure, and

incorrectly identifying dismissal from a job as property under §1951, the Plaintiff has failed to state a

claim under §1951 and therefore cannot cite this as an example of racketeering activity.

3. The Plaintiff Has Not Alleged that Defendants Committed Wire or Mail Fraud Under 18U.S.C. §§1341 and 1343.

As noted in Pelletier v. Zweifel , “Mail or wire fraud occurs when a person (1) intentionally

participates in a scheme to defraud another of money or property and (2) uses the mails or wires in

furtherance of that scheme.” 921 F.2d 1465, 1498 (11th

Cir.1991). The scheme to “defraud” must be an

executed or unexecuted plan to commit a crime that fits the classic common law elements of fraud: (1)

materiality, (2) a false statement, (3) knowledge by defendant that the statement is untrue, (4) intent on

the part of the defendant to deceive some person, (5) justifiable reliance by some person on the

statement and (6) injury to the Plaintiff as a result. This test is slightly altered when the scheme had not

been executed (see id. at 1498-99), but since the Plaintiff in the instant case is alleging that the scheme

had been successfully executed, a more traditional test for fraud should apply. Further, each claim for

fraud must be pled with particularity under Fed. R. Civ. P. 9(b), and “a complaint making such

allegations must (1) specify the statements that the Plaintiff contends were fraudulent, (2) identify the

speaker, (3) state where and when the statements were made, and (4) explain why the statements were



13

fraudulent.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1127-28 (2nd Cir., 1994); see also Phillips

v. LCI International , 190 F.3d 609, 623 (4th

Cir. 1999) (citing Shields with approval).

There are four categories of alleged false statements that the Plaintiff cites: (1) the claim that the

Plaintiff cost Mr. Walker his job, (2) the claim that the Plaintiff falsely accused Defendant Walker of

assault and falsified other evidence related to that assault, (3) the claim that the Plaintiff was involved in

SWATting the Defendants, and (4) that the National Bloggers Club (hereinafter “NBC”) is a “501(c)(3)”

organization (referring to 26 U.S.C. §501(c)(3)). However, the Plaintiff doesn’t properly plead fraud in

any one of those cases.

(A) The Plaintiff Has Not Alleged Any Fraud Related to NBC’s §501(c)(3) Status.

The Plaintiff alleges several times that NBC and/or Defendant Akbar falsely stated that NBC is a

§501(c)(3) non-profit, in paragraphs 50, 122, 124 127, 141-144. However, in none of these paragraphs

does the Plaintiff meet the requirement of particularity. The Plaintiff doesn’t specify which statements

were fraudulent, the speaker, or where and when the statements were made.

Further, the Plaintiff doesn’t even allege—let alone meet the heightened pleading requirements

of Iqbal —that the allegedly false statements were material, that they were known to be false by any

Defendant, or that any Defendant intended to deceive any other person or indeed who exactly was

allegedly fooled. In particular to the knowledge requirement, the Plaintiff admits that it is possible that

the Defendants were merely negligent, writing in paragraph 142 that “Defendants through The RICO

Enterprise knew or had reason to know” that NBC was not a §501(c)(3) charity. Mail and Wire fraud

are intentional crimes, Pelletier , 921 F.2d at 1498, and therefore a person is not liable except for

intentional falsehoods. Meanwhile, the Plaintiff has made only conclusory allegations that any person

relied on NBC and Akbar’s statements, and failed to even allege that such reliance would be justifiable.



14

The Plaintiff can only claim to have met his particularity requirement by incorporating postings

on the internet. However, such content cannot be used to fill in such particularity because the content of

those websites might have changed over time. The purpose of Fed. R. Civ. P. 9(b) is to give the

Defendants proper notice of what statements they will have to defend but how can the Defendants have

such notice when they can’t be sure if that website says the same thing today as it did when the Plaintiff

filed his complaint, or his first amended complaint?

If we were to pretend that it is proper to incorporate material from the internet, we see only two

websites that contain such particular allegations, but even then one cannot make out the elements of

fraud based on them. First, at https://www.lsnewsgroup.com/wp-content/uploads/2013/01/NBC-Feb-9-

2012-Letter.pdf we see a purported copy of a letter written by Mr. Akbar. Even if incorporated into the

Plaintiff’s complaint, it is not sufficient to make out a claim of mail or wire fraud. That letter states “I’d

like to announce the formation of the National Bloggers Club, a 501(c)(3) non-profit.” The letter did not

contain a single word soliciting donations to this organization or even telling readers how to make such

donations if the spirit moved them. It didn’t even contain an address. If the reader suddenly felt like

sending a check, she wouldn’t know where to send it. Standing alone, the letter does not create even the

inference than any person donated to NBC based on its allegedly false representation.

Further, such reliance would not be justifiable. The overall import of the letter is the

announcement of the creation of NBC. Any person of ordinary intelligence would know that in order to

get full §501(c)(3) status one would have to apply for such status from the IRS and then receive

approval; and that person would know that such approval takes time and was unlikely to have already

been completed for a newly-formed corporation. See e.g. Carol D. Leonnig, IRS Stalled Conservative

Groups, But Gave Speedy Approval to Obama Foundation, WASHINGTON POST, May 16, 2013 (available



15

at http://articles.washingtonpost.com/2013-05-16/politics/39310148_1_tax-exempt-status-foundation-

application) visited December 8, 2013 (describing a thirty-four day approval process as “speedy”). In

that context, the ordinary reader would understand that Mr. Akbar was simply expressing that they were

forming an corporation that he believed would eventually receive §501(c)(3)-approved status, which

happens all the time when dealing with charities.

The second time the Plaintiff might be able to meet the particularity requirement by

incorporating a web page is when he cites https://secure.piryx.com/donate/c97AfwVc /Remembering-

Breitbart/ where we see an undated, unsigned internet posting facially attempting to raise money for a

scholarship program. On it, the site says at the bottom that NBC is a “501(c)(3)—status pending.” The

Plaintiff only alleges in a conclusory fashion that this claim is false. However, the IRS states on its own

website that “organizations required to apply for recognition of exemption must notify the Service

within 27 months from the date of their formation to be treated as described in section 501(c)(3) from

the date formed.” (See Application for Recognition of Exemption, Nov. 26, 2013, (available at

http://www.irs.gov/Charities-&-Non-Profits/Application-for-Recognition-of-Exemption), visited on

November 24, 2013). Therefore, Mr. Akbar and NBC are not even required to have applied for such

status as of this writing in order to validly say that they are a “501(c)(3)—status pending.” So based on

the allegations in this complaint, there is no evidence that this statement is even false. Further, this

website indicates that absolutely no donations were made as of this writing. Thus, even if the statement

met all of the other elements of fraud, no one was injured by it.

Therefore, the Plaintiff has failed to even allege, with appropriate particularity, that any

statements satisfy the elements of mail or wire fraud. The Plaintiff never even alleges that any false

statements were material, or that any Defendant intended to deceive any other person. The Plaintiff



16

doesn’t allege that any of the Defendants knew these statements were false, only that they knew or

should have known they were, a negligence standard. Nor is there any allegation of justifiable or

reasonable reliance of such statements. The only attempt to meet the particularity requirement is by

inappropriate citation to web pages, the first of which contained no solicitation of donations and could

not reasonably be read as a representation that NBC was presently approved as a §501(c)(3)

organization and the second of which the Plaintiff has not properly alleged was false and, by all

evidence, has not induced a single donation. In short, the Plaintiff has failed to properly allege that any

of the Defendants committed mail or wire fraud in relation to NBC’s §501(c)(3) status.

(B) The Plaintiff Has Not Alleged Any Fraud Related to SWATting of DefendantsWalker, Frey and Erickson.

In this case, the Plaintiff made a few attempts to allege fraud with particularity, but failed in each

attempt.

First, in paragraph 63 the Plaintiff states that “Frey specifically stated that the swatting

‘happened to another guy writing about the same story,’ and Defendant Frey stated that Plaintiff ‘could

have gotten me killed.’” However, even that is insufficient for a particularized allegation. For instance,

how does the Plaintiff know that “the same story” refers to any story related to Kimberlin? And while

the Plaintiff claims he was the subject of Mr. Frey’s claim that his SWATter “could have gotten me

killed,” the Plaintiff must show with what words the Plaintiff was named.7

Second, in paragraph 66 he quotes the anonymous blogger Defendant “Ace of Spades” as stating

“They are literally going to get someone killed . That is their endgame here.” This does not satisfy the

7 It is important to hold the Plaintiff to these requirements because if this court reviews the interview and

it will see that Mr. Frey was clear that he was not speaking about the Plaintiff when he said that the

SWATter “could have gotten me killed.” The Plaintiff’s claim to the contrary is simply false.



17

specificity requirement because it does not explain how the court would know that the statement was

about the Plaintiff (indeed upon information and belief it was not).

Third, in paragraph 69 the Plaintiff quotes extensively from a writing by Defendant Erickson,

which does not accuse the Plaintiff of being involved in SWATting and makes it clear that the Plaintiff

might not be involved. As Mr. Erickson wrote: “Last week we spent a lot of time writing about Brett

Kimberlin and the incident involving blogger Patterico8 where someone spoofed his phone number and

told 911 he had shot his wife” (emphasis added). Plainly Erickson was not accusing Mr. Kimberlin of

making the call. Likewise, the same term, “someone,” is used to describe the person who SWATted

Erickson, thus making it clear it is not necessarily the Plaintiff.

Fourth, in paragraph 71 the Plaintiff quotes a statement from Defendant McCain suggesting

reporters should investigate what connection a person has to SWATting, again without indicating how

the Plaintiff knows that McCain is talking about him. Even if it was about the Plaintiff, suggesting a

course of investigation for other reporters is not the same as an accusation.

Fifth, in paragraph 95 the Plaintiff finally gets close to a sufficiently particular statement, quoting

Defendant The Franklin Center as saying “Convicted domestic terrorist Brett Kimberlin and his

associates have repeatedly terrorized bloggers and others who highlight his story with over 100

frivolous lawsuits and 4 SWATting attacks” (emphasis added). However, even then it is not clear 1)

who actually wrote it, and 2) whom they were accusing of each act.

Sixth, in paragraph 96 the Plaintiff quotes a tweet that uses the hashtags #tcot, #BrettKimberlin

and #SWATting in it. Hashtags are a method of indicating a keyword to aid a person searching for

tweets on a certain subject (see, e.g. Using Hashtags on Twitter , (available at https://support.twitter

8 Patterico is the name Defendant John Patrick Frey writes under on the internet.



18

.com/articles/49309-using-hashtags-on-twitter), visited on November 24, 2013, attached as Exhibit A.

“#Tcot” stands for “top conservatives on twitter.” But merely using “BrettKimberlin” and “SWATting”

as two in a series of keywords doesn’t mean that McCain was accusing the Plaintiff of being involved in

said SWATtings, any more than he was accusing the “Top Conservatives on Twitter” of being involved

by including them as well.

Seventh, in paragraph 98 the Plaintiff quotes from a book written by Defendant O’Keefe as

saying, “Kimberlin... pioneered the art of ‘swatting[.]’” This constitutes only a few lines in a book that

by the Plaintiff’s own admission is over 250 pages long. Amazon.com lists the book, whose full title is

Breakthrough: Our Guerilla War to Expose Fraud and Save Democracy as having 352 pages. The

Plaintiff doesn’t claim that this alleged falsehood is material and given that the alleged falsehood takes

up only a fraction of one page—literally less than 1% of the book as a whole—it seems unlikely to be

material. The Plaintiff doesn’t allege that this book, written about the author’s attempts to combat

election fraud, is significantly about him, or that anyone bought the book in order to read what Mr.

O’Keefe says about the Plaintiff. Nor does he allege that this single line buried in a long book was

calculated to sell anything to anyone or to cause anyone to donate to anyone.

Eighth, in paragraph 99 the Plaintiff states that Defendant Malkin wrote a piece “implying the

Plaintiff was responsible for swatting.” As the Plaintiff implicitly admits by claiming that Mrs. Malkin

had implied the Plaintiff was responsible for the SWATtings, she does not actually state that the Plaintiff

was involved. Thus even assuming the Plaintiff was not involved in any SWATtings, he hasn’t even

properly alleged a false statement was made.

Ninth, in paragraph 100 the Plaintiff quotes some fragments from a blog run by the unidentified

Defendant(s) known as Kimberlin Unmasked. The key passage is where he writes “[t]he most terrifying



19

methodology they’ve used against their ideological foes is SWATting[.]” The problem is that because

of the Plaintiff’s edits, one cannot see why he believes that this Defendant is writing about him.

Tenth, paragraph 101 involves a sentence written by Defendant McCain. Like with the

allegations against Mrs. Malkin, the Plaintiff admits that it was not a statement that the Plaintiff was

involved in SWATting by claiming that McCain “implied that Plaintiff swatted Aaron Walker.” So he

fails to even allege a false statement was made.

Eleventh, in paragraph 105 the Plaintiff quotes an unknown writer as follows: “Kimberlin’s 2

year campaign of harassment, has led to bloggers losing jobs, threats of violence, and police

‘SWATtings...’” This is at best only an implication of responsibility. It also fails the particularity

requirements by failing to state where and when this statement was made and by whom.

Finally, in paragraph 62 the Plaintiff cites an alleged twitter message that in context plainly

involves the SWATting of Mike Stack, another person who had publicly criticized Brett Kimberlin. Mr.

Stack’s SWATting is not even part of this suit. Further, the statement quoted is ambiguous whether it is

blaming Kimberlin, “Rauhauser” or “TSG” for the SWATting.

The Plaintiff also links to many, many websites for claims of fraud related to SWATting. Again,

this court should not consider such internet sites to supply the necessary specificity. There isn’t enough

space to refute every such internet site, should this court choose to consider them anyway, but Defendant

Walker makes the following notations.

In paragraph 58, the Plaintiff links to a post where the following statement appears: “we don’t

know it is Brett Kimberlin or his allies; for all we know it could end up being a hoax.” In paragraph 59

the Plaintiff doesn’t even allege material at the link is false. At Paragraph 60, no one in any of those

internet articles stated Kimberlin was involved or otherwise responsible. In paragraph 62, 64, 65, 66,



20

70, 77, 78, 82, 103, and 104, the Plaintiff claims that various Defendants had imputed that the was

involved in SWATting and thus even the Plaintiff admits that these Defendants didn’t state he was

responsible, but at most only implied it. In paragraph 67, Defendant Stranahan was accused of

“implying” that Kimberlin was involved in the SWATting of Defendant Walker. Similar language was

also used in paragraph 77, as well as “imputing” noted above. None of these qualify as untrue

statements. Meanwhile, in paragraph 81, the Plaintiff claims Defendant Malkin “repeatedy state[d]” that

the Plaintiff committed the SWATtings, but in fact she didn’t state this to be the case even once.

Similarly in paragraph 102, the Plaintiff falsely claims that an internet article by Defendant McCain

“stated that Plaintiff committed swattings” when an examination of the text shows he had said nothing

of the sort.

Further, in every case outlined in the last fifteen paragraphs, the Plaintiff doesn’t allege that the

statements or implications are made with knowledge that they are false. In fact, the Plaintiff doesn’t

allege that any Defendant knows who the SWATter(s) are so how would any of them know it is false?

Moreover, in paragraph 85 the Plaintiff writes “[m]any of the Defendants... believed that Plaintiff was

involved with the swattings” negating the element of knowledge of falsity for an unknown subset of the

Defendants. In addition to that, the Plaintiff does not once allege (even in a conclusory fashion) that any

of these statements or implications are material, made with the intent on their part to deceive an

unspecified person, inducing justifiable reliance by that person and causing injury to the Plaintiff as a

result. Thus, the Plaintiff has not properly alleged that any Defendant engaged in mail or wire fraud as it

relates to any possible role the Plaintiff had in the SWATtings of Walker, Frey and Erickson.

(C) The Plaintiff Has Not Alleged Any Fraud Related to the Loss of Mr. Walker’sJob.

First, the Plaintiff has failed to allege with appropriate particularity that Defendant Walker (or



21

anyone else) had accused the Plaintiff of getting Walker fired. Specifically, the Plaintiff failed to

specify what statements Mr. Walker made, only writing in paragraph 63 that Walker made this

allegation without quoting his actual words. Further, the Plaintiff has not even convincingly alleged it

was false. When the Plaintiff made claims about the “real” reason Mr. Walker was terminated from his

job, he cited a letter from an outside counsel for Mr. Walker’s former employer, written under fear of

litigation for wrongful termination, that acknowledged in part Mr. Walker was being terminated because

of concern for the safety of his coworkers as follows: “You also wrote disparagingly, even if accurately,

about at least one person that you have described as a ‘terrorist.’” He was describing the Plaintiff, a.k.a.

“The Speedway Bomber.” White, 7 F.3d at 528. The Plaintiff might, in a conclusory fashion, allege he

didn’t cause Mr. Walker and his wife to lose their jobs, but the documents the Plaintiff himself cited

suggests it might be true. In addition to that, as typical, the Plaintiff doesn’t claim that this allegedly

false statement is material, was made with intent on the part of Mr. Walker to deceive some unspecified

person, inducing justifiable reliance by such persons and causing the Plaintiff damage. Accordingly, the

Plaintiff has failed to properly allege any fraud related to the loss of Mr. Walker’s job.

(D) The Plaintiff Has Not Alleged Any Fraud Related to Mr. Walker’s AllegedAssault Against the Plaintiff.

As an initial matter, the Plaintiff is barred by the principle of collateral estoppel from claiming

that Mr. Walker assaulted him at all. This is not the first time that the Plaintiff has attempted to litigate

this issue. Within half an hour of the incident where the alleged assault occurred on January 9, 2013—

before he even claimed to have gone to the hospital—the Plaintiff filed for a Peace Order in

Montgomery County (Maryland) District Court asserting that Mr. Walker had assaulted and harassed

him. Kimberlin v. Walker (I) (Md. Mont. Co. Dist. Ct. 2012) case number 0601SP005392012. The

Plaintiff was granted an ex parte temporary peace order hearing nearly immediately (also before he



22

claimed he went to the hospital) and the court held that assault and harassment had occurred. Then on

February 8, 2012, a final peace order hearing was held with both parties present and the court

determined that while harassment had occurred, no assault had occurred. A de novo appeal in

Montgomery County Circuit court found that no harassment had occurred, either, and dismissed the

entire petition. Mr. Kimberlin was at all times granted a full opportunity to present evidence and make

his claims; the judge simply found Mr. Walker to have been more credible than Mr. Kimberlin.

Therefore, it is improper for the Plaintiff to allege that he had been assaulted by Defendant Walker.

Further, even if collateral estoppel didn’t apply, the Plaintiff has failed to allege with any

particularity that Mr. Walker or anyone else had made any fraudulent statements regarding this alleged

assault. There is not one single quoted statement attributed to Walker or anyone else related to the

alleged assault. The Plaintiff in paragraph 45 alleges that Defendants “concocted a false narrative that

Plaintiff... was not assaulted,” but never even alleges that they made such statements to any third parties.

And, once again, the Plaintiff failed to allege that such claims were material, made with intent on the

part of the Defendants to deceive some unspecified persons, inducing justifiable reliance by such alleged

person, and causing that victim damage. Accordingly, the Plaintiff should be barred by the principle of

collateral estoppel from claiming he had been assaulted, and even if he is not, the Plaintiff has not

properly alleged any fraud related to this alleged assault.

In summary, having failed to properly allege with particularity a single instance of mail or wire

fraud, under 18 U.S.C. §§1341 and 1343, in relation to NBC §501(c)(3) status, in relation to SWATting,

in relation to the loss of Defendant Walker’s job, or the alleged assault, the Plaintiff cannot cite mail or

wire fraud as an instance of racketeering activity.



23

4. The Plaintiff Has Not Properly Alleged that Defendants Committed Money Launderingunder 18 U.S.C. §1957.

The Plaintiff also alleges that unspecified defendants violated 18 U.S.C. §1957, which punishes

transactions involving criminally derived funds. This statute punishes certain transactions “of a value

greater than $10,000” by a person of the United States or taking place in the United States, if that money

is derived from specified unlawful activity, and the person carrying out these transactions knows that it

is so derived. Subsection (f)(3) states that the term “specified unlawful activity” has the same meaning

as in §1956. That term is defined in 18 U.S.C. §1956(c)(7)(A) as including any criminal activity listed

in 18 U.S.C. §1961(1), i.e. the same predicate offenses listed under RICO.

The Plaintiff doesn’t properly allege any of the elements of this offense. For instance, he fails to

allege that the person making the transactions did so knowing they were derived from unlawful activity,

or that they made such transactions in the United States, or that the person doing so is a United States

person; indeed he doesn’t even specify who actually made the transactions. Meanwhile, since the

Plaintiff has failed to properly allege wire or mail fraud by anyone, necessarily the Plaintiff has failed to

properly allege that any Defendant has engaged in any transaction derived from such wire or mail fraud

(or any other unlawful activity).

Finally, while the Plaintiff alleges in paragraphs 141 and 143 the transactions involved property

of a “value greater than $10,000” these are purely conclusory allegations and therefore are not granted

the presumption of truth in a motion to dismiss context. Like in Iqbal , these allegations that the

transaction met the statute’s thresholds are little more than a “formulaic recitation of the elements” 556

U.S. at 678, and this court should conclude, as the Supreme Court did in Iqbal , that “the allegations are

conclusory and not entitled to be assumed true[,]” id. at 681. This court should ignore such conclusory

allegations and find that the Plaintiff has failed to properly plead a violation of 18 U.S.C. §1957.



24

This is doubly so because it is clear that the Plaintiff doesn’t actually know how much has been

donated to NBC, the amount of any individual donation, who made the donation, or the amount moved

in any individual transaction. This is proven by the fact that the Plaintiff also claims in paragraph 141

that “Defendant Akbar refused all requests made to him and the National Bloggers Club for an

accounting of the funds he received and disbursed from his false narratives about Plaintiff.” If Mr.

Akbar has refused to make such an accounting, how can the Plaintiff claim to know what that

accounting would have disclosed?

In short, the Plaintiff has failed to allege that any person acted knowingly. He has not alleged

that the person making the transaction was a U.S. person or the transaction took place in America. The

Plaintiff has failed to properly allege that the transaction was derived from “specified unlawful activity,”

specifically mail or wire fraud. Finally, the Plaintiff has offered only conclusory allegations that the

transactions involved property worth more than $10,000, while contradictorily stating that no accounting

of the transactions had been made. Indeed, the Plaintiff has not even claimed such transactions harmed

him in any way. For these reasons, this court should find that the Plaintiff has not properly pled money

laundering as a predicate act.

5. The Plaintiff Has Not Alleged that Defendants Committed Retaliation Against a Witnessand Victim in Violation of 18 U.S.C. §1513.

In paragraph 137, the Plaintiff alleges that a number of fanciful acts had the effect of retaliating

against a witness and informant in violation of 18 U.S.C. §1513. However, this statute does not cover

every form of retaliation against a witness. Subsection (a) relates to murder and attempted murder and

therefore doesn’t apply, while §1513(b) in relevant part punishes a person who “causes bodily injury to

another person or damages the tangible property of another person, or threatens to do so, with intent to



retaliate against any person for for various kinds o participation in a federal proceeding,9 or for

providing information related the commission o a Federal offense. Peaceably writing bad things on the

internet about someone doesn t count; neither does filing criminal charges, peace orders and lawsuits, or

offering a settlement in a lawsuit; and neither does advocating that the Plaintiffbe sent back to prison.

Assault might be covered by that, but the Plaintiff has two problems in making that claim. First,

claims o assault are barred by collateral estoppel, as explained above. Second, the Plaintiff doesn t

allege that the assault related to any federal case or alleged federal crime at all, and, indeed, he cannot

plausibly make that claim. Instead, he alleges that the assault related to Kimberlin v Allen (Md. Mont.

Co Cir. Ct 2011) case number 339254V, a Maryland state case.

Meanwhile, the Plaintiff also alleges, for the first time in the entire complaint, that unknown

persons had threaten[ed] his family. There is no attempt to catalogue who made the threat or when

and in what words the threat was made to allow this court to determine it is plausible on its face,

Iqbal 556 U.S. at 663, that it was made in relation to a federal proceeding. As such, it is merely a

conclusory allegation and should be disregarded.10

9Under 8U.S.c. §1515(a)(1) an official proceeding is defined as relating to federal cases. See US

v Shively 927 F.2d 804 (5th Cir. 1991).

is particularly important to disregard that conclusory allegation o a threat to his family, because,

upon information and belief, the Plaintiff is attempting to deceive this court by making this ambiguous

claim. This is what the Plaintiff really means, upon information and belief Several months ago, the

Plaintiffs wife, Kimberlin, came to Defendants Walker and Hoge for help. She stated that she

had left the Plaintiff, that he had threatened her she sought custody o their daughters, and that he had

committed repeated violations o Maryland s law barring statutory rape, CODE CRIM LAW. §3-

307. Mrs. Kimberlin was understandably terrified about what would happen the Plaintiff was given

sole custody over their two underage daughters. Defendants Walker and Hoge shared her concern and

offered to help. Thus, in the eyes o the Plaintiff, Defendants Walker and Hoge have threaten[ed] his

family in the sense that they have attempted to help his wife to peaceably leave him and obtain custody

over their two daughters through a lawful court process. Upon information and belief, the Plaintiff

25



26

In conclusion, the Plaintiff has failed to properly allege a single predicate act under 18 U.S.C.

§1961(1), let alone the two acts required by §1961(5). He doesn’t allege obstruction related to federal

proceedings as required by §1503. He doesn’t allege bribery as required by §1510. He doesn’t allege an

“intent to facilitate illegal gambling business” as required by §1511. He doesn’t allege a violation of

§1951, instead claiming somehow that an ordinary offer to settle is extortion. The Plaintiff makes

numerous attempts to allege mail and wire fraud under §§1341 and 1343, but doesn’t properly allege

that the Defendants made a single untrue statement with knowledge it is false that was material, that was

made with intent to deceive another person, that induced justified reliance in that other person and that

reliance somehow caused damage to the Plaintiff. Likewise, the Plaintiff fails to properly allege that any

Defendant engaged in monetary transactions derived from such mail and wire fraud, with knowledge

that it was so derived, that it was done in America or by a United States person, or that any said

transactions involved an amount of more than $10,000 as required by §1957. And finally, the Plaintiff

has failed to properly allege retaliation against a witness or party in relation to a federal proceeding in

violation of §1513. Therefore, having failed to allege a single predicate act under §1961(1) necessary to

allege a “pattern of racketeering activity,” the Plaintiff’s claims under §1962(c) should be dismissed

with prejudice.

B. The Plaintiff has Not Properly Alleged that the Claimed Pattern of Racketeering Activity

Has Sufficient Continuity.

While the Plaintiff has failed to properly allege any predicate acts under §1961(1), even if his

conclusory and incomplete allegations of criminal conduct are treated as true, none of them add up to a

chose that language deliberately to make it sound like his family was threatened with violent retaliation

when it was not. The particularity requirement guards against this kind of deception by requiring the

Plaintiff to say exactly what he means by those terms.



27

pattern of racketeering activity. As the court noted in U.S. v. Bledsoe, RICO is not simply supposed to

be a sentencing enhancement for a given list of predicate offenses. 674 F.2d 647, 659 (8th

Cir. 1982);

cited favorably in U.S. v. Tillett , 763 F.2d 628, 632 (4th Cir. 1985). Therefore, the RICO Plaintiff must

also allege “that the predicate acts are related and that they constitute or pose a threat of continued

criminal activity.” Al-Abood , 217 F.3d at 238. Likewise, patterns consisting solely of fraud or

involving only one named victim are unlikely to satisfy that continuity requirement. Id. Instead, “RICO

liability is reserved for ongoing unlawful activities whose scope and persistence pose a special threat to

social well-being.” GE Investment Private Placement Partners v. Parker , 247 F.3d 543, 549 (4th Cir.,

2001).

GE Investment in particular is closely parallel to the current alleged facts. Both GE Investment

and the present case involved the quality of one thing or person. In GE Investment , there was a large

alleged scheme to trick a group of people into believing that a faltering company was sound, so that they

would invest in it. Here, there is a large alleged scheme to trick a group of people into believing that a

single person—the Plaintiff—was a bad person, so that those people would invest in efforts to counter

this person’s malfeasance. A pattern of conduct centered around such a “single goal” was insufficient in

GE Investment , id., and this court should find it to be equally insufficient, here. Therefore, this court

should find that the Plaintiff has not sufficiently alleged that the alleged racketeering activity meets the

requirement of continuity as required to render it a “pattern.”

C. The Plaintiff has not Properly Alleged that an Enterprise Exists.

As noted in Bledsoe, while the RICO statute does not attempt to define and punish “something as

ill-defined as ‘organized crime[,]’... each element of [RICO]... was designed to limit the applicability of

the statute and separate individuals engaged in organized crime from ordinary criminals.” 674 F.2d at



29

of this enterprise and the Plaintiff never explains why he thinks they are not part of the conspiracy.

Yet for James O’Keefe, all it takes is an off-handed comment in a few lines on a single page in a

352 page book to be declared part of this enterprise. Mandy Nagy, likewise, only allegedly “smear[ed]”

the Plaintiff in a single news article but that is enough to make her part of the enterprise. Meanwhile

Glenn Beck, as well as the Blaze and Mercury Radio Arts are being sued because he “provided a

platform” to Walker and Frey on his broadcast. ¶ 63. But, the Plaintiff acknowledges that Walker was

given a similar platform by The Huffington Post and yet neither TheHuffingtonPost.com, Inc., nor any

of its affiliates or employees are named as Defendants in this suit. ¶ 62. Likewise, Defendant Twitchy

is being sued for an article “that compiled dozens of tweets [by third parties] that together impute that

Plaintiff committed the swatting.” ¶ 70. So for Twitchy it was enough to quote third parties as allegedly

“imputing” responsibility to the Plaintiff for SWATting. Meanwhile, in paragraph 104 the Plaintiff

complains that “Defendant Akbar gave an interview to The Examiner in which he imputed that the

Plaintiff was responsible for swattings,” and yet the company that runs The Examiner, Clarity Digital

Group LLC, is not a defendant, despite doing the same thing Twitchy had done. If the Plaintiff has any

reason to rule any person in or out of this supposed enterprise, he has yet to disclose it.

RICO gets more than its share of paranoid, delusional plaintiffs, perhaps because RICO invites

people to allege that there are large, shadowy groups “out to get them.” Therefore it is particularly

important when it comes to the enterprise requirement that the Plaintiff present more than just

conclusory allegations. The court must have some assurance that the Plaintiff believes the enterprise

exists based on evidence, rather than merely based on the imagination of a paranoid pro-se plaintiff or

unnamed grudges, imagined or real. Accordingly, this court should find that the Plaintiff has failed to

properly allege that an enterprise exists and dismiss all claims under 18 U.S.C. §1962(c).



30

D. The Plaintiff has Not Properly Alleged that the Asserted Racketeering Activity Has

Proximately Caused Injury to Plaintiff’s Business or Property.

The Plaintiff begins his section on injury by claiming a form of damages he cannot claim under

RICO. In paragraph 152, the Plaintiff writes in conclusory fashion that he “has suffered injury to his

name, property and business.” Even if true, 18 U.S.C. §1964(c) makes it clear that a person can only

recover for injuries to “business or property.” He cannot recover for injury to his “name,” and indeed

such injury is ordinarily only recoverable under a theory of defamation.

Likewise, the Plaintiff has no standing to allege damage due to “having his employer defamed,”

since he is suing in his individual capacity. Nor can he recover for public relations costs in terms of

“having to spend untold hours, days, and weeks defending against these false narratives” for such

allegations of costs go to damages to name, are too indirect to have been proximately caused by the

alleged Defendants’ actions and too conclusory to be considered in any case.

Finally, his claim of having lost employment and funding opportunities is purely conclusory.

Indeed, the only non-conclusory allegation relating to either subject is found in paragraph 76, when the

Plaintiff alleges that “Defendants Walker and DB Capital Strategies attempted to use Defendant

Walker’s frivolous federal lawsuit to extort a settlement that would require the termination of Plaintiff’s

employment at the non-profit.” Putting aside that a mere settlement offer is not unlawful pressure under

§1951 and that dismissal from a job is not property under §1951 as indicated above, the Plaintiff never

alleges that he was actually fired for this reason, and the use of the word “attempted” suggests he was

not. Indeed, he claims that he is presently “the Director of Justice through Music” in paragraph 9.

Meanwhile, his claim to have lost funding opportunities is conclusory and, upon information and belief,

refers purely to losses by his corporation and not to the Plaintiff.

Thus, the Plaintiff has failed to properly allege a violation of §1962(c). The Plaintiff doesn’t



31

allege a pattern of racketeering activity, having failed to allege two predicate acts, and having failed to

meet the requirement that these predicate acts “constitute or pose a threat of continued criminal

activity.” Al-Abood , 217 F.3d at 238. Further, the Plaintiff has not, except in the most conclusory

fashion, alleged that an enterprise exists, and indeed there is no rhyme or reason to his decision to

include one person or another in it. Finally, the Plaintiff has failed to properly allege that he was injured

in his property and business by any such racketeering activity as required under §1964(c). Accordingly,

this court should dismiss under §1962(3) with prejudice .

II.

THE PLAINTIFF HAS NOT STATED A CLAIM THAT THE DEFENDANTS HAVE

CONSPIRED TO VIOLATE 18 U.S.C. §1962(C) IN VIOLATION OF §1962(D).

The Plaintiff also alleges that the Defendants conspired to violate §1962(c) under §1962(d) and

then otherwise treats §1962(d) as though its elements are identical to §1962(c). See e.g. Amend. Comp.

¶¶ 123, 124, 128 and 129 (repeating previous paragraphs, almost word-for-word, but with the word

“conspired” added in in conclusory fashion).

But the elements are not identical. Instead, in order to allege a violation of §1962(d) as a

conspiracy to violate §1962(c), the Plaintiff must properly allege that: (1) an enterprise exists or that it

would have existed if the offense was completed, (2) that the enterprise did, or would have engaged in,

or would have affected interstate or foreign commerce; (3) that each Defendant knowingly agreed that a

conspirator would commit a violation of §1962(c), and (4) that a racketeering activity committed as an

overt act in furtherance of that agreement (5) proximately caused damage to the Plaintiff’s business and

property. Salinas v. U.S., 522 U.S. 52 (1997) (setting out the first three elements), and Beck v. Prupis,

529 U.S. 494 (2000) (holding that a Plaintiff cannot recover under §1962(d) unless he is proximately

injured by a racketeering activity that is committed as an overt act in furtherance of such RICO



32

conspiracy). As outlined above, the Plaintiff has failed to properly allege that an enterprise actually

existed. He has also failed to allege that it would have existed if some agreement had been carried into

force. Indeed, the Plaintiff has failed to allege any such agreement even in the most conclusory fashion,

let alone alleged sufficient facts, that if assumed to be true, to make this court believe that such an

agreement exists. And once again, the Plaintiff has failed to properly allege he was injured by any

predicate acts serving as overt acts of this alleged conspiracy, or even that there were any predicate acts.

Accordingly this court should dismiss all claims under 18 U.S.C. §1962(d) claiming a conspiracy to

violate §1962(c) with prejudice.

III.

THE PLAINTIFF HAS NOT PROPERLY ALLEGED A VIOLATION OF 42 U.S.C. §1983

AGAINST DEFENDANT FREY.11

In order to state a claim under 42 U.S.C. §1983, the Plaintiff must allege sufficient facts that, if

true, would lead this court to believe that (1) a person, (2) acting under color of state law, (3) subjects or

causes to be subjected, (4) the Plaintiff to the deprivation of rights conferred by the U.S. Constitution or

Federal laws, (5) proximately causing (6) damage to the Plaintiff.

First, Defendant Frey did not act under color of law. The most useful case on this point is Naffe

v. Frey et al. (C.D. California, 2012) case number 2:12-cv-08443-GW-MRW. The opinion of that court

is attached as Exhibit B. In that case, involving the same Defendant Frey and also involving a claim that

Mr. Frey violated 42 U.S.C. §1983, the Honorable George Wu found that Frey had not acted under color

of law. As with the instant case, the majority of the Plaintiff Naffe’s claim that Frey had acted under

11 Defendant Walker has standing to challenge this and every cause of action based on federal law, even

where his own conduct is not at issue, because this court can only have jurisdiction over the Plaintiff’s

state law claims by virtue of supplemental jurisdiction under 28 U.S.C. §1367(a). Therefore Defendant

Walker has a valid interest in seeing all federal claims dismissed as to all Defendants, so that all state

claims against Mr. Walker might be dismissed for want of jurisdiction.



33

color of law was based on the fact that his day job was as a state employee and he mentioned that he

worked for the state on his website. As the court held in Naffe, “Frey’s practice of simply (relatively

frequently) mentioning the fact that he is a deputy district attorney... does not transform everything he

says on his blog or on Twitter into state action.” Nor should the fact, noted in paragraph 86, that the

District Attorney’s Office has not attempted to limit his off-duty blogging activities transform his

conduct into state action. It would be unconstitutional under the First Amendment if they attempted to

limit his off-duty expression with very limited exceptions. The Naffe court found that “[q]uite simply,

nothing Plaintiff has alleged plausibly suggests that Frey acted, or purported or pretended to act, in the

performance of his official duties.” The instant Plaintiff has offered absolutely no reason why this court

should find otherwise.

The closest the Plaintiff comes to meeting this requirement is in paragraph 90 when the Plaintiff

alleges, again in conclusory (and fanciful) fashion, that Defendant Frey attempted to recruit the help of

the group Anonymous through Barrett Brown by allegedly offering a quid pro quo which allegedly

included help with Mr. Brown’s legal problems. However, the Plaintiff specifically states that “Mr.

Brown refused that request.” So, at worst, this was an attempted deprivation of unspecified rights and

§1983 doesn’t punish a mere attempt.

Indeed, the Plaintiff has not alleged that this attempt or any other act or omission by Defendant

Frey caused the Plaintiff to be deprived of any right protected by Federal law or the U.S. Constitution.

The Plaintiff claims that Frey participated in the creation of “false narratives” about him thus allegedly

defaming him, but there is no Federal law protecting the Plaintiff from defamation. At the same time,

the Plaintiff doesn’t identify in paragraph 156 any specific constitutional or statutory right that would

have been violated if Mr. Frey successfully convinced “the group Anonymous to retaliate against the



35

A. The Plaintiff has Not Alleged a Violation of 42 U.S.C. §1985(3).

As noted in Carpenters v. Scott , 463 U.S. 825, 839, 839 n. 1 (1983), 42 U.S.C. §1985(3) is

divided into three parts. The first two parts allow for a cause of action if:

If two or more persons in any State or Territory conspire or go in disguise on the highwayor on the premises of another, for the purpose of depriving, either directly or indirectly,any person or class of persons of the equal protection of the laws, or of equal privilegesand immunities under the laws; or for the purpose of preventing or hindering theconstituted authorities of any State or Territory from giving or securing to all personswithin such State or Territory the equal protection of the laws;

In Griffin v. Breckinridge, the Supreme Court explained that in 42 U.S.C. §1985(3)

The language requiring intent to deprive of equal protection, or equal privileges andimmunities, means that there must be some racial, or perhaps otherwise class-based,invidiously discriminatory animus behind the conspirators' action. The conspiracy, inother words, must aim at a deprivation of the equal enjoyment of rights secured by thelaw to all.

403 U.S. 88, 102 (1971). The Plaintiff does not allege racial animus or any other invidious animus.

Indeed no such animus would be plausible given the sheer diversity of Defendants. In addition to that,

the Plaintiff has also failed to properly allege either that there was a conspiracy to do this or that any

person put on a disguise (this is called the Ku Klux Klan act for a reason). Meanwhile, the remainder of

§1985(3) relates to federal elections and have no application to the instant allegations. Thus, for all of

these reasons, the Plaintiff’s claims under §1985(3) should be dismissed with prejudice.

B. The Plaintiff has Not Alleged a Violation of 42 U.S.C. §1985(2).

As it is also noted in Carpenters v. Scott , 463 U.S. at 839 n. 1, 42 U.S.C. §1985(2) is divided up

into two parts. The first part deals with various offenses relating to “the administration of federal

courts,” including conspiracies to

deter, by force, intimidation, or threat, any party or witness in any court of the UnitedStates from attending such court, or from testifying to any matter pending therein, freely,fully, and truthfully, or to injure such party or witness in his person or property on



36

account of his having so attended or testified,

Nothing the Plaintiff has alleged to have occurred meets this standard. The alleged assault by Mr.

Walker claimed in paragraph 43 is insufficient. Most fundamentally, that followed a hearing in the case

of Kimberlin v. Allen (Md. Mont. Co. Cir. Ct. 2011), which the Plaintiff notes was filed in the Circuit

Court of Montgomery County, Maryland, and therefore not a Federal Court as required by the act.

There is nothing in the Complaint to suggest that this was in relation to a federal case and indeed there

was no federal case in existence at that time that the Plaintiff was involved in. In addition to that, as

noted above, the claim that Mr. Walker assaulted Mr. Kimberlin is barred by collateral estoppel.

Further, the Plaintiff only makes a conclusory allegation that there was a conspiracy to engage in such

an assault, which is also required under the act.

Likewise, a threat to harm a person if they showed up in federal court would satisfy the statute,

but the Plaintiff doesn’t allege that this occurred. The Plaintiff does allege that he was threatened if he

showed up at court on a specific date. Specifically, in paragraph 53 he claimed to receive an anonymous

message saying, “Don’t show up in court Tuesday or you are dead.” However, this is insufficient for

several reasons.

First, he does not provide the date upon which it was allegedly received. This does not allow the

court to determine what hearing this was connected to, and thus what court this was connected to and

this court cannot assume it was related to a Federal case.12 In any case, the Plaintiff doesn’t allege that

12 The Plaintiff previously claimed to have received this message on May 26, 2012. On May 27, 2012,

Mr. Kimberlin filed criminal charges against Mr. Walker alleging that he received the same message “on

behalf of Mr. Walker” specifically on May 26, 2012. See Exhibit E. At that time, there was a hearing in

the case of Kimberlin v. Walker (II) (Md. Mont. Co. Dist. Ct. 2012) case number 0601SP019792012,

scheduled for May 29, 2012, in the Montgomery County District Court, which was the following

Tuesday. There was no federal case filed at that time, and accordingly no federal court dates pending at



37

the threat was received in relation to a Federal Court case, as required under the statute.

Second, the Plaintiff does not allege that any of the Defendants actually sent the message.13

Nor

does the Plaintiff allege that any of the Defendants proximately caused such a message to be sent by

incitement under Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (the government cannot “forbid or

proscribe advocacy of the use of force or of law violation except where such advocacy is directed to

inciting or producing imminent lawless action and is likely to incite or produce such action”). Simply

put, even if he received that message and even if it related to a federal court case, he hasn’t alleged any

facts that would lead this court to conclude that the Defendants were legally responsible for that threat.

Moving on, the second part of §1985(2) allows for a private cause of action if

two or more persons conspire for the purpose of impeding, hindering, obstructing, ordefeating, in any manner, the due course of justice in any State or Territory, with intent todeny to any citizen the equal protection of the laws, or to injure him or his property forlawfully enforcing, or attempting to enforce, the right of any person, or class of persons,to the equal protection of the laws;

As noted in Kush v. Rutledge, this portion of the statute only applies to actions motivated by an

invidiously discriminatory animus:

The second part of § 1985(2) applies to conspiracies to obstruct the course of justice instate courts, and the first part of §1985(3) provides a cause of action against two or more persons who “conspire or go in disguise on the highway or on the premises of another.”Each of these portions of the statute contains language requiring that the conspirators'actions be motivated by an intent to deprive their victims of the equal protection of thelaws.

460 U.S. 719, 725 (1983). Once again, the Plaintiff has not even alleged an appropriate invidious

that time. Therefore if the Plaintiff truly received this message, it was likely to be connected to that state

case and not a federal case that didn’t exist.13 The Plaintiff admitted in a hearing on May 29, 2012 that he had no evidence that Mr. Walker sent that

message. If he had evidence anyone associated with Mr. Walker sent it, the Plaintiff surely would have

presented it.



38

animus. Further, the Plaintiff has failed to allege—except in the most conclusory fashion—that there

was a conspiracy to injure the Plaintiff.

Thus, the Plaintiff has failed to allege any cause of action under §1985(2) or (3). He has not

alleged any invidiously discriminatory animus as required by the first two parts of subsection (3) and the

second part of subsection (2). He doesn’t allege that any of the acts complained of relate to a federal

proceeding as required by the first part of subsection (2) and or a federal election as required by the

remaining parts of subsection (3). In addition to those flaws, the Plaintiff’s claim that Defendant Walker

assaulted him is barred by collateral estoppel, the Plaintiff has failed to allege that Mr. Walker conspired

with anyone else to engage in such an assault, or that any Defendants were legally responsible for any

alleged threats that the Plaintiff claims to have received. For all of these reasons, the Plaintiff has failed

to state a claim for which relief can be granted under §1985, and accordingly that claim should be

dismissed with prejudice.

V.

THIS COURT SHOULD DISMISS ALL STATE-BASED CLAIMS.

The Plaintiff has alleged a number of claims based on state law, specifically common law fraud,

defamation, false light, and intentional infliction of emotional distress. Because there is no diversity of

citizenship, this court can only have jurisdiction by exercising its supplemental jurisdiction under 28

U.S.C. §1367(a).

Every single state-based claim should be dismissed. First, with the Plaintiff having failed to state

a claim under any federal law for which relief can be granted—making dismissal of every federal claim

appropriate—this court no longer has original jurisdiction over any matter. Further, this court should

decline to exercise supplemental jurisdiction in this case because it is not in the interests of justice.

Meanwhile, the Plaintiff has failed to state a claim for any of these state-based claims upon which relief



39

can be granted. Accordingly this court should dismiss all state law claims, either for want of jurisdiction

or for failure to state a claim for which relief can be granted.

A. The Plaintiff’s State-Based Claims Should be Dismissed Because There is No Valid Federal

Question.

The Plaintiff doesn’t even attempt to claim that his state-based claims are based on diversity of

citizenship. Therefore, this court can only exercise jurisdiction over state law claims using its

supplemental jurisdiction under 28 U.S.C. §1367(a). However, §1367(a) specifically requires that this

court have “original jurisdiction” over at least one claim before it and §1367(c)(3) instructs this court to

decline supplemental jurisdiction when “the district court has dismissed all claims over which it has

original jurisdiction.” As demonstrated in the preceding sections, the Plaintiff has failed to state a cause

of action for a violation of any federal law. Accordingly, without any federal question jurisdiction, this

court should dismiss all remaining state claims because it lacks jurisdiction over them.

B. This Court Should Decline to Exercise Supplemental Jurisdiction in the Interests of Justice.

Even if supplemental jurisdiction lied in the present case, this court can refuse to exercise such

jurisdiction under §1367(c)(4) if “there are other compelling reasons for declining jurisdiction.” Such a

reason is present here. One of the many crimes the Plaintiff, Brett Kimberlin, has been convicted of is

perjury. Kimberlin v. Dewalt , 12 F. Supp. 2d 487, 490 n. 6 (D. Md 1998). He has discovered that

because of that conviction he is categorically forbidden under Maryland Law from testifying in any

courtroom. MD CODE CTS. & JUD. PROC. §9-104 (“[a] person convicted of perjury may not testify.”)

The state of Maryland has put this rule of evidence into place so that people with a track record

of lying under oath that is serious enough to motivate prosecutors to actually convict them for this crime

would never be able to plague Maryland’s courts and potential defendants with their falsehoods again.

The Plaintiff, therefore, is desperate to get his state-law claims out of the Maryland court system,



40

but doing so defeats the policy of the Maryland legislature, in seeking to protect the public at large from

the accusations of a proven liar. Accordingly, even if this court should find that federal question

jurisdiction exists, this court should exercise its discretion and refuse to exercise supplemental

jurisdiction over the state-based claims, to support that policy.

C. The Plaintiff has Failed to State a Claim for Upon Which Relief Can Be Granted For Any

of His State Law Claims.

Turning to the merits of the Plaintiff’s state-law claims, the Plaintiff has failed to properly allege

a claim for common law fraud, defamation and false light, and for intentional infliction of emotional

distress. Specifically the Plaintiff has no standing to sue for common law fraud against third parties; that

is their alleged damage, not his. Second, the majority of the Plaintiff’s claims for defamation and false

light invasion of privacy is barred by the statute of limitations. Moreover, he never alleges a single

instance of a person making a false statement within the statute of limitations that is described with

sufficient particularity. Additionally, the Plaintiff is defamation proof: that is, his reputation is so awful

it is impossible to further damage it. Next, the Plaintiff fails to properly allege the elements of

intentional infliction of emotional distress, including that the conduct is extreme and outrageous, that it

actually caused any distress at all—let alone extreme distress—or that such distress was actually caused

by the intentional conduct of the Defendants. Finally, the Plaintiff fails to properly allege that he was

injured under any of these state law claims. Accordingly even if this court had jurisdiction over his state

law claims, this court should dismiss for failure to state a claim for which relief can be granted.

1. The Plaintiff Doesn’t Have Standing for Any Claim for Common-Law Fraud.

The Plaintiff is not claiming that he himself was defrauded. Indeed, since justifiable reliance is

an element of fraud, he could not plausibly claim he was defrauded. The Plaintiff cannot claim that he

was lied to about his own involvement in SWATting inducing him to donate to the National Bloggers



41

Club or anyone else, given that he knows just how involved in such SWATtings he actually was.

Instead, the Plaintiff is claiming that unknown third parties were defrauded. But those are not his

damages and therefore he has no standing to claim that the Defendants defrauded him, and his common

law fraud claim should be dismissed with prejudice.

2. The Plaintiff Doesn’t Properly State a Claim for Defamation or False Light Within theStatute of Limitations.

Under MD CODE CTS. & JUD. PROC. §5-108, “[a]n action for assault, libel, or slander shall be

filed within one year from the date it accrues.” That statute of limitations was halted on October 15,

2013, when this suit was filed. Therefore, besides being required to meet the particularity requirements

under Fed. R. Civ. P. 9(b), the Plaintiff must allege the statements were made after October 15, 2012.

In paragraph 60 the Plaintiff claims to have been defamed by an article posted on The

Examiner’s website. Upon information and belief, that article was published on June 8, 2012 and in any

case the Plaintiff fails to allege what specific date the alleged defamation occurred on and therefore it

cannot be presumed to be within the statute of limitations. The Plaintiff complains that Defendants

“imput[ed]” and “impl[ied]” he was involved in SWATtings in paragraphs 62 and 77 but makes no

effort to indicate when the statements were made. Indeed, by his use of the words “imputing” and

“implying” the Plaintiff is admitting they are not “statements” at all, failing another element of the cause

of action for defamation. Either one of those reasons is sufficient to warrant dismissal of the claim that

those “statements” defamed him.

Meanwhile, in paragraph 100 the Plaintiff manages to actually name a statement made within the

statute of limitations, but as noted above, because of the Plaintiff’s edits, one cannot see why the

Plaintiff believes that the anonymous writer or writers known as “Kimberlin Unmasked” is writing about

him. At the same time, in paragraph 105 the Plaintiff manages to name another allegedly defamatory



42

statement, but the quoted words only, at most, implies he had involvement in SWATting, failing to meet

the requirement that there be an untrue statement. See e.g., Crowley v. Fox Broadcasting Co., 851

F.Supp. 700, 703 (D. Md., 1994) (“Courts must be vigilant not to allow an implied defamatory meaning

to be manufactured from words not reasonably capable of sustaining such meaning.”)

Indeed, one has to wonder how such “implications” of SWATting, even if untrue, would harm

the Plaintiff’s reputation. Jackson v. Longscope, 394 Mass. 577 (1985) is instructive on this point,

holding that the reputation of Anthony Jackson, another violent criminal, was so poor that it was

incapable of being further damaged.

The instant Plaintiff is a convicted terrorist who set off eight bombs in six days in the town of

Speedway, Indiana. White, 7 F.3d at 528, 530. The last of his bombs claimed the life of a father and

veteran named Carl DeLong and injured his wife, Sandra DeLong. Kimberlin v. DeLong , 637 N.E.2d

121 (Ind. Sup. Ct. 1994). Mr. DeLong’s widow won a judgment against him in civil court, id., which

Kimberlin proceeded to cheat her out of, his conduct becoming so outrageous that his parole was

revoked because of it. Dewalt , 12 F. Supp. 2d 487. He even sued this widow, “her lawyer, the

probation officer, and various Bureau of Prisons and Department of Justice officials[,]” id . at 490, for

attempting to collect this debt. See also Kimberlin v. DOJ , 788 F. 2d 434 (7th Cir. 1986) (affirming

dismissal of that suit). And that is in addition to being a convicted perjurer, Dewalt , 12 F. Supp. 2d at

490 n. 6, and drug smuggler U.S. v. Kimberlin, 805 F. 2d at 225, 233, 235 and 238.

Further, in Swate v. Schiffers, the court held that prior negative publicity should be taken into

account when considering whether one is defamation proof, since the operative question is whether the

alleged defamation could actually damage a plaintiff’s reputation or if the damage had already been

done by others. 975 S.W.2d 70, 74 (Tex. App., 4th Dist. 1998) (“the earlier newspaper articles and the



43

disciplinary orders describe conduct that would have ruined Swate’s reputation prior to the publication

of Schiffers's article.”) In 1999, Slate Magazine called Kimberlin a “habitual liar, and all-around

sociopath.” A.O. Scott, Cody Shearer: If He Didn’t Exist, the Vast Right Wing Conspiracy Would Have

Invented Him, SLATE, May 22, 1999 (available at http://www.slate.com/articles/news_and_politics/

assessment/1999/05/cody_shearer .html) visited December 7, 2013. An article published just after his

convictions for the Speedway Bombings accused Kimberlin of plotting behind bars to (1) frame

someone else for his crimes, (2) arrange for the murder of one of his prosecutors and several other

persons, and (3) to attempt to destroy the political career of the same prosecutor in a sting operation. R.

Joseph Gelarden, Kimberlin Case a Maze of Murder, Deceit , I NDIANAPOLIS STAR , October 18, 1981 at 1

(available at http://archive.indystar.com/ assets/pdf/BG164276919.PDF) visited on December 7, 2013,

attached as Exhibit C. And a book written with Kimberlin’s help by Mark Singer insinuated that he was

a pedophile engaged in a relationship with a ten year old girl named Debbie Barton.14 Mark Singer,

CITIZEN K: THE DEEPLY WEIRD AMERICAN JOURNEY OF BRETT K IMBERLIN 76-78 (1996). This

authorized biography also suggested that he was involved in the murder of Julia Scyphers, the

grandmother of the young suspected victim, id. at 82 et seq; and that the bombings were committed in

order to distract the police from that murder, id. at 89 et seq, see also RetroIndy: The Speedway

Bombings, Part I: For a Week in 1978, the Town of Speedway was Terrorized by a Serial Bomber ,

I NDIANAPOLIS STAR , (available at http://www.indystar.com/article/99999999/NEWS06/100919012/)

visited December 7, 2013 and RetroIndy: The Speedway Bombings, Part II: Building the Case Against

Brett Kimberlin I NDIANAPOLIS STAR , (available at http://www.indystar.com/article/ 99999999/NEWS06/

100919013) visited December 7, 2013, both attached at Exhibit D. Singer’s book also features

14 Mark Singer identifies the Plaintiff’s young suspected victim as “Jessica” Barton.



44

Kimberlin speaking in detail about his life as a drug kingpin, CITIZEN K at 60-61 and passim; confessing

to tax evasion, id. at 61-62; confessing to a racist prison fight (where he called his opponent the “n-

word” repeatedly), id. at 183; and confessing to sabotaging military equipment thus placing our troops in

danger, id. at 184.

Exactly what negative conclusions does the Plaintiff think a reader will draw about him based on

allegedly implied involvement in SWATtings? That he is capable of acting with indifference to human

life? Leaving a bomb near a high school football game so that Carl DeLong could find it and blow off

his leg would have already proven that to the reader’s satisfaction, as would his sabotage of military

equipment, the jailhouse murder plots, and the suspicion of involvement in the murder of Julia Scyphers.

Does he think he was defamed by the suggestion that he would be involved in deceiving law

enforcement? The previously published reports that he tried to frame someone else for the Speedway

Bombings, as well as Mark Singer’s suggestion that he committed the Speedway Bombings in order to

deflect the police from investigating the murder of Julia Scyphers establishes this. Or consider the

specific harm that Mr. Kimberlin alleges that the Defendants have done to his reputation, claiming in

paragraph 181 this alleged defamation “make[s] Plaintiff appear odious, infamous and/or frightening.”

Any person familiar with his proven career in crime is likely to draw the same conclusion. One doesn’t

need to accuse a man who earned the nickname of “The Speedway Bomber” of SWATting to make

people think he is odious, infamous15 and frightening. A perusal of publicly available court records is

15 Longscope, 394 Mass. 577 (involving the perpetrator of “The Hitch Hike Murders”) and Leopold v.

Levin, 45 Ill.2d 434 (1970) (involving Nathan Leopold of “Leopold and Loeb” fame) also stand for the

principle that if one commits a sufficiently infamous crime, one is considered a public figure from that

day forward. See e.g., U.S. v. Kimberlin, 805 F.2d 210, 223-24 (7th Cir. 1986) (Brett Kimberlin arguing

for relief from the effects of negative publicity, citing “extensive media coverage of the 1978 bombings

and defendant's trials and other troubles in the years between the bombings and this third trial”). In



45

sufficient. The Plaintiff’s reputation is so poor it is difficult, if not impossible, to harm it further. Like

in Longscope, the Plaintiff might at best obtain nominal damages—as indeed he received when he sued

Seth Allen for defamation—and therefore the First Amendment counsels against hearing any defamation

claims at all, as it did in Longscope.

Meanwhile, as this court has noted in Crowley v. Fox Broadcasting Co., “[i]n Maryland, a claim

for false light invasion of privacy may not stand unless the claim also meets the standards for

defamation.” 851 F.Supp. at 704. This includes attaching the same statute of limitations. Smith v.

Esquire, Inc., 494 F.Supp. 967, 970 (D. MD, 1980) (“[t]o hold otherwise would severely undercut the

policy considerations which led to the enactment of the one-year statute governing defamation cases.”)

Thus, his claims for false light fail for precisely the same reasons why his claims for defamation fail.

Therefore, having failed to properly allege a single defamatory statement by the Defendants—or

a statement placing him in a false light—within the statute of limitations, and having a reputation so

poor that it is not capable of being harmed by charges of SWATting, the Plaintiff’s common law claims

for defamation and false light should be dismissed with prejudice.

3. The Plaintiff Doesn’t Properly State a Claim for Intentional Infliction of EmotionalDistress.

In order to state a claim for Intentional Infliction of Emotional Distress, the Plaintiff must allege

addition to committing a crime famous enough to earn him the nickname “The Speedway Bomber” the

Plaintiff has further thrust himself into the national limelight by accusing former Vice President Dan

Quayle of buying pot from him, Kimberlin v. Quinlan, 6 F.3d 789, 791 (D.C. Cir. 1993), helping to publish Singer’s book about his life, and even helping his daughter to make a music video celebrating

the end of the Bush presidency, Monica Hesse, A Little Surprise For the Prize-Giver , WASHINGTON

POST, November 8, 2007 (available at http://www.washingtonpost.com/wp-

dyn/content/article/2007/11/07/ AR2007110702898.html) visited December 7, 2013. However, given

that he is a public figure, any claims he was defamed is subjected to the higher standard requiring legal

malice. NYT v. Sullivan, 376 U.S. 254 (1964).



46

sufficient facts that, if true, would lead this court to believe that the conduct is reckless or intentional,

that it is extreme and outrageous, that it proximately caused the Plaintiff’s alleged emotional distress,

and that such emotional distress is severe, proximately causing damage to the Plaintiff. Batson v.

Shiflett , 325 Md. 684, 733 (1992).

The Plaintiff only alleges two actions that could have proximately—legally—caused the Plaintiff

harm and was carried out by any of the Defendants: defamation in the form of alleged implications of

SWATting and the alleged assault. The claim that the Plaintiff received threats of death and injury

cannot be considered because he has not alleged that any of Defendants are the legal cause of such

threats under Brandenburg , 395 U.S. at 447 (1969) (establishing the legal standard for incitement).

Likewise, allegations that Defendants have called for him to be sent back to prison—which are only

supported by conclusory statements anyway—would not amount to anything more than petitioning the

government for a redress of grievances, which is protected by the First Amendment. And, as noted

earlier, any claim that Mr. Walker assaulted Brett Kimberlin is barred by collateral estoppel.

Further, even then the alleged defamation and alleged assault does not meet the standards for

“extreme and outrageous conduct.” As the Maryland Court of Appeals explained in Harris v. Jones,

It is only where it is extreme that the liability arises. Complete emotional tranquillity isseldom attainable in this world, and some degree of transient and trivial emotionaldistress is a part of the price of living among people. The law intervenes only where thedistress inflicted is so severe that no reasonable man could be expected to endure it.

281 Md. 560, 571 (1977). What we have here, is very ordinary allegations of defamation and assault.

And as noted in Harris,

The personality of the individual to whom the misconduct is directed is also a factor. “There is adifference between violent and vile profanity addressed to a lady, and the same language to aButte miner and a United States marine.”

Id. at 568. Here the alleged conduct is directed at a hardened criminal, The Speedway Bomber, whose



47

own conduct has caused a man to lose his life. The idea that he is a delicate flower who cannot stand to

see people say bad things about him on the internet is not supported by anything written in his

complaint—or by simple logic.

Further it would be unclear if any of the tortuous conduct actually caused the distress the

Plaintiff alleges. The Plaintiff’s proven criminal record, for instance, has received a great deal of

attention in recent years driven by the Plaintiff’s own attempts to silence those speaking about that

record (it is observed that often when people try to suppress speech, it calls attention to the message).

Further, upon information and belief, the Plaintiff’s marriage is on the rocks, his wife having left him for

another man, Jay Elliott. Upon information and belief, when Mr. Kimberlin discovered his wife was

having this relationship, he filed false criminal charges against Mr. Elliott (that were quickly dropped),

got Mr. Elliott fired from his job, and tried to have his wife involuntarily committed based on false

claims that she was mentally unstable. His wife, meanwhile, filed the previously mentioned charges of

sexual offense in the third degree under MD CODE CRIM. LAW. §3-307, although that case was dropped.

Who is to say that how much these events—which are not part of this suit—contributed to whatever

distress he felt during this same period?

Indeed, the Plaintiff has failed to properly allege that he has felt any distress at all, let alone

extreme emotional distress. His only attempt to address this element of the cause of action is a

conclusory allegation. Having failed to properly allege that the conduct was extreme and outrageous,

that it was caused by the Defendants’ conduct, or that the distress was extreme, the Plaintiff has not

stated a cause of action for intentional infliction of emotional distress and therefore this claim should be

dismissed with prejudice.



48

4. The Plaintiff Never Properly Alleges That He Was Damaged in Any of His State LawClaims.

As noted before, under Iqbal, “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice[,]” 556 U.S. at 678. But when it comes to the

Plaintiff’s allegation of damages, that is all he has. Whether it is in paragraph 175 in relation to

common law fraud or paragraph 190 relating to defamation, his allegations that he was damaged are

strictly pro forma conclusory allegations and recitations of the damage elements. Meanwhile, in relation

to his claim of false light or intentional infliction of emotional distress, the Plaintiff alleges absolutely no

damages. Since damages are a necessary element of each state-based claim, each state-based claim

should be dismissed with prejudice for this reason, as well as the reasons outlined previously.

CONCLUSION

The Plaintiff has failed to properly allege any claim upon which relief could be granted. The

Plaintiff has not alleged a violation of 18 U.S.C. §1962(c) having failed to properly allege that an

enterprise existed, or that any of the defendants engaged in a pattern of racketeering activity that

constitutes or poses a threat of continued criminal activity, or even that they committed a single

predicate act under §1961(1). Moreover, the Plaintiff has made nothing but the most vague and

conclusory attempt to allege a violation of §1962(d). At the same time, the Plaintiff has not properly

alleged that Defendant Frey has acted under color of state law under 42 U.S.C. §1983, or that he caused

any deprivation of any constitutional rights, or that such deprivation caused the Plaintiff any harm.

Meanwhile, the Plaintiff has not alleged a single violation of 42 U.S.C. §1985(2) or (3), alternately

failing to allege appropriate invidiously discriminatory animus, a relationship to any federal proceeding,

or a relationship to any federal election, meriting dismissal of the last of the Plaintiff’s claims under

federal law with prejudice.



49

With the Plaintiff having failed to properly allege a single violation of federal law, this court no

longer has supplemental jurisdiction over the state law claims, and can dismiss them for this reason as

well as in the interests of justice. In addition to that, the Plaintiff has failed to state a cause of action for

any of the state law claims. First, he does not have standing to claim the damages of third parties for

common law fraud. Second, he fails to make out a proper claim for defamation and false light within

the statute of limitations, and The Speedway Bomber’s reputation is already so poor that it cannot be

harmed further, rendering him defamation-proof. And finally, the Plaintiff has only made conclusory

allegations that any Defendant has caused him intentional infliction of emotional distress.

Accordingly, all federal law causes of action should be dismissed, with prejudice, for failing to

state a claim for which relief can be granted. Meanwhile, the state claims should also be dismissed for

failing to state a claim for which relief can be granted or for want of jurisdiction. In either case, all state

law claims should be dismissed and all other relief that is appropriate should be granted to Defendant

Walker.

Monday, December 16, 2013 Respectfully submitted,

Aaron J. Walker, Esq.Va Bar# 488827537 Remington RoadManassas, Virginia 20109(703) [email protected]



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EXHI IT

OPINIONS ISSU INN FFE J FREY ET L



Case 2:12 cv 08443 GW MRW Document 67 Filed 04/18/13 Page 1 o 11 Page ID :1479

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

~ : ~ d r ~ ; M B ~ t c i ~ v 12-8443-GW MRWx) ~ k { t April 18 2013t ~ j i ~ t ~ ~ , f { : ~ ; f } : . ; . i ~ - : ~~ m ~ U ~ . 1 ~ ~ Nadia Naffe John trick Frey et ai

1 GEORGE H WU UNITED STATES DISTRICT JUDGE

Javier Gonzalez

Deputy Clerk

Deborah Gackle

Court Reporter Recorder Tape No

Attorneys Present for Plaintiffs:

Eugene G Iredale

PROCEEDINGS:

Attorneys Present for Defendants:

Kenneth P WhiteAlexandra Zuiderweg

DEFENDANT JOHN PATRICK FREY S MOTION DISMISS FIRST THROUGH

SIXTH CAUSES OF ACTION IN THE FIRST AMENDED COMPLAINT filed

01/11/13)

DEFENDANT JOHN PATRICK FREY S MOTION DISMISS SECONDTHROUGH SEVENTH CAUSES OF ACTION IN THE FIRST AMENDED

COMPLAINT filed 01/11/13)

DEFENDANT JOHN PATRICK FREY S MOTION FOR A SECURITYUNDERTAKING PURSUANT TO CA. CODE OF CIVIL PROCEDURE 1030 filed

01/11/13)

DEFENDANT JOHN PATRICK FREY S MOTION TO STRIKE THE SECONDTHROUGH SIXTH CAUSES OF ACTION OF THE FIRST AMENDED

COMPLAINT filed 01/11/13)

DEFENDANT COUNTY OF LOS ANGELES MOTION TO DISMISS PLAINTIFF S

FIRST AMENDED COMPLAINT filed 01/11/13)

PLAINTIFFS MOTION FOR ORDER RELIEVING LEIDERMAN DEVINE LLP AS

COUNSEL OF RECORD FOR PLAINTIFF filed Olf31113)

The Court s Tentative Ruling is circulated and attached hereto Court hears oral argument For reasonsstated on the record, Plaintiffs Motion for Order Relieving Leidennan Devine LLP as Counsel of

Record for Plaintiff, is GRANTED Attorney Eugene Gerald Iredale is substituted as counsel of record

for Plaintiffin place and stead of Leiderman D e v i n e ~ LLP Defendants motions to dismiss are TAKENUNDER SUBMISSION. Court to issue ruling.

15

Initials ofPreparer JG CV-90 06/04) CIVIL MINUTES· GENER L Page 1of



Ii

IIiI

IIJ

I

i

iI1

Case 2:12-cv-08443-GW-MRW Document 67 Filed 04/18/13 Page 2 of Page I :1480

Naffe v Frev et al Case No. CV-12-8443- GW (MRWx)

Tentative Rulings on: (1) Defendant County Los Angeles's Motion to Dismiss PlaintiffsFirst Amended Complaint Pursuant to Fed. R Civ. P. l2(b)(6), (2) Defendant John Patrick

Frey's Motion to Dismiss First Through Sixth Causes Action in the First Amended Complaint

to Rule 12(b)(6)

the Federal Rules

Civil Procedure, 3 Defendant John Patrick Frey'sMotion to Dismiss Second Through Seventh Causes Action the First Amended ComplaintPursuant to Federal Rule Civil Procedure 12(b)(l), (4) Defendant John Patrick Frey's

Renewed Motion to Strike the Second Through Sixth Causes Action the First Amended

Complai.nt Pursuant to California's Anti-SLAPP Law, California Code Civil Procedure §425.16, (5) Defendant John Patrick Frey's Motion for a Security Undertaking Pursuant to

California Code Civil Procedure 1030, and (6) Plaintiff Nadia Naffe's Motion for Order

Relieving Leiderman Devine LLP as Counsel Record for Plaintiff

A series

motions are now before the Court, all but two consisting

attempts to eitherdismiss or strike portions or the entire First Amended Complaint ( FAC ) plaintiffNadia Naffe

( Plaintiff') filed on December 27, 2012.' The Court will first consider the motions

defendants County Los Angeles ( the County ) and John Patrick Frey to the extent they

challenge plaintiff's first claim for relief, brought pursuant to 42 U.S.C. § 1983. The Court will

then consider Frey's motion to dismiss the second through seventh causes action, a challenge

to Plaintiffs assertion that diversity jurisdiction exists here based upon an argument that the

75,000 jurisdictional minimum is not satisfied. Depending on the resolution those disputes,

the Court will either dismiss what remains the action r return to the other motions and

arguments the defendants pose.2

The Court set forth the general background this case in its ruling on motions

challenging the original Complaint, issued December 10, 2012. eeDocket No. 29.3

The Court

will not repeat that context here and will address new allegations to the extent they are germane

to its analysis.

1As with the original Complaint, Plaintiff asserts seven claims for relief in the FAC: violation 42 U.S.C. § 1983,public disclosure/invasion privacy, false light/invasion privacy, defamation, intentional infliction of emotionaldistress, negligence, and negligent supervision.

2 Plaintiffhas filed a motion that is not at all dependent on resolution of the challenge to the existence of diversityjurisdiction. She has moved to relieve her prior counsel. There being no opposition to that motion, and consideringthat Plaintiffhas already associated in her replacement counsel, the Court grants the motion.

3 The standards the Court applies when assessing a Rule 12(b)(6) challenge were also set forth in its December 10,2012, ruling. See DocketNo. 29, at 5-6. The Court incorporates that discussion herein.

1



Case 2:12-cv-08443-GW-MRW Document Filed 04/18/13 Page 3 of 11 Page ID :1481

Plaintiffs Section 1983 Claim

To begin, Plaintiff has agreed to drop her Section 1983 claim against the County. See

Docket No. 55, at 1:1-5. That leaves her Section 1983 claim against Frey as the only claim this case raising a federal question. As the Court has previously noted, that claim requires,

among other things, that the action in question be taken by a person acting under color of state

law. West Y. Atkins 487 U.S. 42 48 (1988).

When it assessed Plaintiff s original Complaint on this point, the Court indicated that,

given thefacts she had alleged, it would not credit Plaintiff s conclusory assertion that Frey acted

under color of state law in his alleged harassment of Plaintiff via his website, blog and Twitter

account.4

See Price v Hawaii 939 F.2d 702 708 (9th Cir. 1991) ( Conclusionary allegations,

unsupported by facts, will be rejected as insufficient to state a claim under the Civil Rights Act. )

(omitting internal punctuation and quotation marks). (quoting Jones Y. Cmty Redevelopment

Agency 733 F.2d 646 649 (9th Cir. 1984»; i ( [A] defendant is entitled to more than the bald

legal conclusion that there was action under color of state law.j. Plaintiff s new allegations do

not advance her case for stating a claim based on the existence of state act ion and, as with the

motion to dismiss her original Complaint, she has not cited any case which comes close to

suggesting that what Frey allegedly did here would amount to such state action. Marsh v.

nty o San Diego 680 F.3d 1148, 1158 (9th Cir. 2012); Pitts Cnty o Kern 17 Cal.4th 340,

362 (1998) (indicating that a district attorney represents the state when preparing to prosecute

and when prosecuting criminal violations of state law, and when training and developing policy

in these areas).

j Plaintiff s state action allegations are, again, largely conclusory, see FAC 13, 16, 19,lI 29 37-39 41-43 45 50 52 55 64 66 72, 74, 99, and, where they are not conclusory, they are

1 speculative (or demonstrably falses). Importantly, Frey s practice of simply (relatively

4 To the extent Plaintiffsimply repeats in the FAC the type of allegations the Court has already rejected as a basisfor finding state action, the Court simply incorporates its discussion of the reasons for rejecting those allegations inits earlier ruling. See Docket No. 29, at 7-10; see also FAC 4,8, 10 a)- 0), 11, 15, 17,56.

In paragraph 39 of the FAC Plaintiffquotes Frey as saying the following: You owe [O Keefe] @jamesokeefeiii aretraction. A big one. You d better issue it promptly. [A threat made as aDeputy District Attorney]. FAC 39.The Courtmay consider the text ofFrey s actual statement in connection with a Rule 12 b) 6) challenge. SeeMarder Lopez 450 F.3d 445, 448 9th Cir. 2006); Lee v. City o Los Angeles 250 F.3d 668, 688-89 9th Cir.2001). Notwithstanding Plaintiff s use of quotation marks, the language [A threatmade as a Deputy DistrictAttorney] does not appear in Frey s actual comment. See Frey Decl. Docket No. 40), Exh. KK, at 266. The Courtwould consider issuing sanctions against Plaintiffand/or her attorneys for the contents of paragraph 39.

2



II

Iii

Case 2:12-cv-08443-GW-MRW Document 67 Filed 04/18/13 Page 4 of 11 Page :1482

frequently) mentioning the fact that he is a deputy district attorney or prosecutor, see id

10(a)-(0), does not transform everything he says on his blog or on Twitter into state action.6

Quite simply, nothing Plaintiff has alleged plausibly suggests that Frey acted, or purported or

pretended to act, in the performance o his official duties. See Anderson v Warner 451 F.3d

1063, 1068-69 (9th Cir. 2006) (identifying three critical requirements - that the actions were

performed while the [individual] is acting, purporting, or pretending to act in the performance

o his or her official duties ; that the pretense o acting in the performance o his duties must

have had the purpose and effect o influencing the behavior o others ; and that the challenged

conduct must be related in some meaningful way either to the [individual s] governmental status

or to the performance o his duties ) (omitting internal quotationmarks); Huffman v Cnty olLos

Angeles 147 F.3d 1054, 1056-58 (9th Cir. 1998).

Plaintiffhas now included in her allegations Frey s comment on Twitter (which was not

in her original Complaint, but which the Court discussed in the course o determining whether

Plaintiffshould be allowed to amend, see Docket No. 29, at 10), stating yfirst task is learning

what criminal statutes, any, you have admitted violating. FAC 48(i).7 The Court noted

when it fIrst considered this statement that it was difficult to discern what Frey was talking about

at the time, and that the suggestion was that the conduct in question had occurred outside

California8(and that Frey was concerned with Plaintiffs potential violation o le eraI law). See

Docket No. 29, at 10. The context o the conversation is equally diffIcult to discern now, as

Plaintifffreely admits in the FAC. See FAC at 16 n.1.Plaintifftakes this to mean that she should simply be afforded the opportunity to conduct

discovery to fInd out more about what was happening during the Twitter-based discussion that

6 Plaintiffacknowledges, and then attempts to summarily dismiss as difficult to find and untrue, the fact thatFrey places a disclaimer on his blog indicating that his statements thereon are made in his personal capacity. Thefull text o several o the statements Plaintiff relies on explicitly make the point that Frey is speaking ,in his personalcapacity. See Frey Decl. Docket No. 40), Exh. Q, at 93; i Exh. P, at 88-89; see also Marder 450 F.3d at 448;Lee 250 F.3d at 688-69. Of course, this does notmean that this is true, as a legal matter, but Plaintiffstill mustcome forward with factual allegations supporting the contrary conclusion.

7 In her Opposition brief, Plaintiff characterizes this as Frey issu[ing] a direct threat against Ms. Naffe with Frey

stating that he intended to investigate Ms. Naffe for possible criminal misconduct. DocketNo. 53, at 11: 18-21(emphasis added). Again, sanctions may very well be in play for Plaintiffs (and/or her counsel s) willingness toplay fast-and-loose with the language that is actually at issue here. See also Footnote 5, supra

8 To the extent that Plaintiffnow speculates that Frey was talking about Plaintiff s possession ofO Keefe s emails,see FAC 48, she has not come close to suggesting what a Los Angeles County prosecutor could possibly charge

herwith.for such conduct.

3



III 0

II

I1

Case 2:12-cv-08443-GW-MRW Document 67 Filed 04/18/13 Page 5 of 11 Page :1483

led to this statement. But that is not how pleading works, post Twombly. Plaintiffmust plead

facts plausibly suggesting that she has a claim for relief. See Bell Atl. orp Twombly 550

U S 544, 557 (2007); Hartmann Cal. Dep t of Corrections Rehab. 707 F.3d 1114, 1122

(9th Cir. 2013). Facts that are merely consistent with a claim are insufficient to get to the

discovery stage o proceedings. Plaintiff has not plausibly pled facts that Frey was acting as a

deputy district attorney when he made that statement.

Specifically, Plaintiff has failed to allege facts demonstrating that this comment has

anything to do with anything over which a Los Angeles County Deputy DistrictAttorney such as

Frey could possibly have jurisdiction. To the extent Plaintiff argues that Frey nevertheless is a

state actor because it is conceivable he could contact other prosecutors in other jurisdictions,

federal or state, to influence prosecutorial decisions in relation to this issue, the same can be said

for any member o the general public. Frey is not transformed into a state actor for taking such

steps (or implying that he would take such steps) simply because he is, in his professional role, a

. prosecutor in this jurisdiction. Plaintiffhas presented no facts indicating or suggesting that Frey,

or the Los Angeles County District Attorney s Office in general, is part o some super

jurisdictional task force charged with investigating Plaintiff or the crimes she m yor may not

have committed. fJennings Shuman 567 F.2d 1213, 1220 (3d rr 1977).

Plaintiff s other attempts to have the Court conclude that she has sufficiently pled that

Frey was acting in his professional capacity when he engaged in his blog- and/or Twitter-based

discussions are equally fact-poor. She claims that DistrictAttorney Steve Cooley wanted Frey to

blog because it would assist Cooley in his run for Governor, but has no facts to support that

speculation (to the extent it would evenmatter under the Anderson analysis). See FAC 6 She

also concludes that Frey was a state actor because it is common for district attorneys to speak

to the press about their cases, as well as other cases o interest to the office and to the

administration o criminal justice, and that Deputy District Attorneys are authorized to speak on

behalf o the District Attorney s Office on such matters. ld 38 The conduct leading to his

comments obviously was not one o Frey s cases and Plaintiffs argument would mean that

anytime a deputy district attorney, in his or her private capacity, speaks to the press about anycase (or potential case) in any jurisdiction, he or she is automatically doing so in his or her

professional capacity. This Court will not accept that theory based on the facts pled here.

4



Case 2:12-cv-08443-GW-MRW Document 7 Filed 04/18/13 Page 6 of 11 Page ID :1484 .

9 tis Plaintiff's interactionswithO'Keefe, a conservativeactivist, which sheasserts led to Frey's interest inher. See 21-37.

10 TIle question of state action can be decided at the Rule 12(b)(6) stage where the allegations do not raise areasonable inference that the defendant is a state actor. See e g Mueller v. Auker 700 F3d 1180, 1191-92 (9th Cir.

2 12 ; Caviness v Horizon Cmty Learning Ctr Inc 590 F.3d806, 808 9th eir 2010); Johnson v Knowles 113

F.3d 11 14,1116 (9th Cir. 1997 .

~ i n t i f f also asserts that she w ~ preparing to turn over audio from the wiretapping of

Congresswoman Waters's office to authorities in Los Angeles County. See 42, 44(c), 46.

But she does not specify whether those authorities would have been state or federal and she

ultimately turned them over, not to California-based state authorities, but to federal authorities in

Washington D.C. (as one might expect with respect to wiretapping of the office of a member of

Congress). See 65. In any event, frey s conduct allegedly in association with those plans

might have subjected him to discipline from his employer, but it does not turn those actions into

actions under color of law.

Finally, Plaintiff 's suggestion that Frey was acting in his professional capacity when he

attempted to give advice to James O Keefe9for purposes of helping him defend against criminal

prosecution is facially implausible. See 45. District Attorneys' offices are not in the

business of assisting criminal defendants or potential criminal defendants with their potential

defenses to charges.

The Court was on the verge of dismissing Plaintiff's Section 1983 claim against Frey

without leave to ~ n in connection with the original Complaint. Nevertheless, it gave Plaintiff

a chance to bolster her state action allegations. As set forth above, she failed to do so

sufficiently. The Court would now dismiss that claim with prejudice.

Coupled with her

decision to abandon her Section 1983 claim against the County, only state law claims would then

remain in this case. The Court must therefore determine whether the jurisdictional minimum of

75,000 is present because,

not, the Court will dismiss the state law claims under 28 U.S.C. §1367(cX3), without prejudice, to the extent they are properly before the Court only by way of

supplemental jurisdiction.

Diversity Jurisdiction

the FAC, Plaintiffalleges that her state law claims are before the Court not just byway

of supplemental jurisdiction (due to the presence ofher federal question Section 1983 claim), but

also because there is complete diversity over the parties. See F C ~ 1, 3-4. Complete diversity,

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of course, requires that the claims exceed 75,000, exclusive of interest and costs. See 28 U.S.C.

§ 1332(a). IIn considering the motions challenging her original allegations, the Court sua sponte

indicated that it needed more from Plaintiff in order to determine that 75,000 or more is - or

was - at issue in this case. See McNutt v. General Motors Accept Corp Ind 298 U.S. 178,

189 (1936) ( If [a plaintiff's] allegations ofjurisdictional facts are challenged by his adversary in

any appropriate manner, he must support them by competent proof. And where they are not so

challenged the court may still insist that the jurisdict ional facts be established or the case be

i s m i s s ~ and for that purpose the court may demand that the party alleging jurisdiction justify

his allegations by a preponderance of evidence. ); Harris v. Rand 682 F.3d 846, 851 (9th Cir.

2012) ( [W]here the district court has doubts about whether diversity exists, the district court

may 'insist that the jurisdictional facts be established or the case he dismissed, and for that

purpose the court may demand that the party alleging jurisdiction justify [its] allegations by a

preponderance of evidence. ') (quoting Gaus v. Miles Inc 980 F.2d 564, 567 (9th Cir. 2012));

Christensen v. Northwest Airlines Inc 633 F.2d 529, 530-31 (9th Cir. 1980) (affirming district

court 's finding that plaintiffs damages claim was not made in good faith but only for the

purpose of obtaining federal court jurisdiction and that the injury was too small to establish

requisite amount of damages). But see Geographic Expeditions Inc v Estate Lhotka ex ret

Lhotka 599 F.3d 1102, 1106 (9th Cir. 2010) ( The amount in controversy alleged by the

proponent of federal jurisdiction - typically the plaintiff in the substantive dispute - controls so

long as the claim is made in good faith. To justify dismissal, it must appeal to a legal certainty

that the claim is really for less than the jurisdictional amount. ) (quoting Crum v Circus Circus

Enters 231 F.3d 1129, 1130 (9th Cir. 2000)).

In response, Plaintiff offered a declaration, stating the following:

Other courts have offered that it must be clear to a legal certainty that the amount in controversy does not meet thejurisdictional minimum. See e g Schubert v Auto Owners Ins Co 649 FJd 817, 822 (8th Cir. 2011 ; see alsoFrederico v Home Depot 507 FJd 188, 194 3d Cir. 2007 . In Sanchez v Monumental Life Ins Co 102 F.3d 398

9th Cir. 1996 , the Ninth Circuit said as much in dicta See id at 402 (rejecting assertion that legal certainty wasapplicable in that case and opining that it is applicable in two types of cases,n including those brought in thefederal court in which the plaintiffhas filed a good faith complaint alleging damages in excess of the requiredjurisdictional minimum ). Other courts have suggested that the legal certainty test only comes into play if thejurisdictional threshold is uncontested. McMillian v. Sheraton Chicago Hotel & Towers 567 F.3d 839, 844 (7thCiT. 2009 . There is no question that this Court has the suosponte ability - indeed. an obligation - to confirm theexistence of subjectmatter jurisdictionover this matter.

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Case 2:12 cv 08443 GW MRW Document 67 Filed 04 18 13 Page 8 of Page ID :1486

2 On March 26 2012 imrnedip.tely after Mr. Frey published my Social Security

number on his blog, Patterico's Pontifications, I began receiving alerts from

Experian, a credit reporting agency, that changes were being made to my credit

report.

3. In August 2012 the Internal Revenue Service (IRS) contacted me to inform me

that multiple individuals had used my Social Security number to report earned

income. As I am a full t ime student at Harvard University, working to earn my

degree in English for teaching, I do no t earn an income.

4. In Ma y 2012 a car dealership contacted me to verify whether I intended to

purchase a car. I did no t attempt to purchase any vehicle.

5 Since Mr. Frey began attacking me on his blog and on Twitter in February

2012, I have suffered numerous health problems. His conduct has caused me

great distress. I am suffering from a bleeding ulcer, depression, anxiety, severe

migraines and difficulty concentrating, which has had negative effects on my

studies.

6. Additionally, Mr. Frey s statements about me on his blog an d on Twitter have

provoked his unstable fans and followers to harass and threatenme. I have had to

move twice now due to death threats I have received.

7. Mr. Frey has also ruined my reputation, making it exceedinglydifficult for me

to find any employment. A simple Google search of my name brings up Mr.

Frey s blog and his statements about me are available for all prospective

employers to read.

Naffe Dec . (Docket No. 56-2) 2_712

; see also FAC 75, 79, 83, 87, 90, 94, 102. t is true

that this is the only evidence before the Court with respect to the injuries Plaintiff claims to have

suffered, and thus, purely as a mathematical matter, it obviously would satisfy a

preponderance standard.

However, Frey raises, and the Court i tsel f might pose, several questions about this

evidence. First, in terms of harm to her credit, Plaintiffcites no examples of any actual damages,

e any purchases or commercial activity not conducted by her that sh e has been forced to cover.

As Frey argues, there is reason to question whether Plaintiff ever could be liable for any sizable

12 The allegations in the FAC are even vaguer. eeFAC 54 62 75 79 83 87 90 94,102.

13 Plaintiffs Opposition briefon the existence of diversity jurisdiction is only two pages long. See Docket No 56

She has not therefore, given any further heft to the claims in her declaration. Nor has she attempted to argue withthe Court's reliance on McNutt s preponderance standard, as opposed to the legal certainty standardmentioned in

Geographic Expeditions and anchez

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amount o money given the legal protections offered to those who have their identity stolen.

Second, while Plaintiff unquestionably asserts that she has suffered various ailments since Frey

began attacking her on the Internet, her assertions are, at this point in time, fairly vague and

not supported by any corroborating evidence or reference to any medical treatment she has

undergone or medical bills she has incurred because o her conditions. Third, Plaintiffs

complaints about death threats forcing her to twice move that are attributable to Frey's

unstable fans and followers are, again, relatively vague; moreover, the Court might question

why Frey (and/or the County) should be chargeable for such conduct. Finally, although Plaintiff

asserts it is difficult for her to find employment (because o Frey's attacks on her credibility

and honesty), she also admits that she is a full time student. She does not identify any particular

employment she claims to have lost. Nor does she appear to account for the fact that she has

admitted to a role in the wiretapping o Maxine Waters's office, see FAC 30-32, another fact

that is - unfortunately for her - available for all prospective employers to read. See e g

http://www.opednews.com/Quicklink/New-Allegations-lames-O-K-in-General News-120315

330.html (last visited April 16 2013); http://www.dailykos.com/story/2012/03/16/l074992/

New-Allegations-lames-O-Keefe-Breitbart-Targeted-Maxine-Waters-in-Wiretap-Plot (last

visited April 16 2013); see also Kingman ReefAtoll Investments L.L C. United States 541

F.3d 1189, 1195 (9th Cir. 2008) (discussing scope o district court's consideration in connection

with Rule 12(b)(1) subject matter jurisdiction challenge). The Court can take judicial notice o

the existenceo

- and easeo

accessing - such reports on the Internet.Plaintiff also has requested punitive damages here, a common pursuit in a case pressing

intentional tort claims, along with attorney's fees pursuant to 42 U.S.C. § 1988 14 see FAC

Prayer 4. Given the extent o the evidence Plaintiff has presented thus far, however, the Court

would effectively have to conclude that any case seeking punitive damages and/or attorney's fees

automatically meets the 75,000 minimum, something the Court is unwilling to conclude.

Andrews E Du Pont De Nemours Co 447 F.3d 510, 514-15 (7th Cir. 2006); Saglioccolo

Eagle Ins. Co 112 F.3d 226,233 (6th CiT. 1997) (refusing to include intentional infliction o

emotional distress claim that was defective from the start in jurisdictional minimum

'4 Once the Court proceeds to the analysis o diversity jurisdiction, the federal claim potentially giving rise to

attorneys' fees would havebeen dismissed. tis unclear what effect, any this would have on theCourt'sassessmento the existence o the jurisdictionalminimum. Amount in controversyanalysis normally looks t theclaims as they are presented at the outset of the case. See Schwarzer, Tashima et at., California Practice Guide:

Federal Civil Procedure Before Trial 20 I I) § 2: 1799 at 2C-85.

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Case 2:12-cv-08443-GW-MRW Document Filed 04 18 13 Page 10 of 11 Page ID :1488

calculation because [a] contrary conylusion would give plaintiffs an incentive to insert in

complaints meritless intentional infliction of emotional distress claims - claims for which the

amount in controversy often is difficult to determine - to create federal court subject matter

jurisdiction over other state-law claims that, on their own, would fail to satisfy the amount-in

controversy ).

To satisfy the McNutt burden, the Seventh Circuit has held that a party must do more

than point to the theoretical availability of certain categories of damages. McMillian

Sheraton Chicago Hotel Towers 567 F.3d 839, 844 (7th Cir. 2009). At this point in time, this

is essentially all that Plaintiff has done wit respect to the credit-related damages and

employment-related damages she asserts, both of which currently appear to be highly

speculative. While it appears as if Plaintiff believes she has already suffered compensable harm

in terms of the effects Frey s alleged conduct has had on her health and in costs associated with

threats she has allegedly received from Frey s alleged followers, she has not given the Court any

details or a sense ofthe specifics ofher harm.

McMillian is perhaps instructive. There, the Court noted that the plaintiffs all had

medical expenses in amounts significantly less than the jurisdictional minimum. then analyzed

the situation as follows:

In their supplementaljurisdictional memorandum, the plaintiffs maintain that their

claims for future medical expenses and pain and suffering account for the

jurisdictional shortfall. However, none of the plaintiffs points to any competent

proof that he or she could prove damages from these categories to recover a total .

amount of damages that would reach the jurisdictional threshold. They do not

suggest that there is any documentary or testimonial evidence that would showthe

necessity for future medical treatment of their injuries. No r do they submit

factual examples of their post-accident experience or point us to cases in which

the plaintiffs had suffered similar injuries, and the jury awarded pain and

suffering damages in amounts that would satisfy the jurisdictional requirements

here.

Id at 845. The court ruled that the plaintiffs had not sustained their burden o f demonstrating

federal jurisdiction. See id ; see also Rapoport v Rapoport 416F 2d 41, 44 (9th Cir. 1969).

As McMillian demonstrates, though it may be uncommon, federal courts do reject, under

the McNutt rule, federal jurisdiction even when there are facially sufficient diversity allegations.

See also Rapoport 416 F.2d 41; Travelers Prop Cas v Good 689 F.3d 714 (7th Cir. 2012). At

this point in time, there is a strong argument for the Court doing the same here.

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The Court would invite the parties to address this issue further at oral argument. the

Court ultimately grants Frey s Rule 12 b) l) motion, it would lack independent subject matter

jurisdiction over Plaintiff s state law claims and would dismiss them, to the extent they are

before the Court only by way o supplemental jurisdiction, pursuant to U.S.C. § 1367 c) 3).

Any dismissal o the state law claims would be without prejudice to Plaintiff advancing them in

state court. All remaining motions with the exception o the motion for an order relieving

counsel, which is granted, see Footnote 2, supr would then be vacated.

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Case 2:12 cv 08443 GW MRW Document 65 Filed 04/19/13 Page 1 of 2 Page :1473

JS

UNITED STlATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA


CaseNo. CV 12-8443-GW(MRWx)

Title Nadia Naffe v John Patrick Frey et al

Date April 19, 2013

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez None Present

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None Present None Present

PROCEEDINGS IN CHAMBERS : ORDER CONFIRMING TENTATIVE RULING

The Court confirms the Tentative Ruling issued this day as its final ruling, with the following

additional comments. At oral argument, Plaintiffs counsel directed the Court to the Ninth Circuit s

decision in McDade v West 3 F.3d 1135 (9th Cir. 2000), for support that the allegations here are

sufficient to demonstrate that defendantFrey acted under color of state law. Though none of the parties

have ever actually cited that decision in their briefing on the current motion, the Court nevertheless

considered it when it issued its ruling on the motions to dismiss the original Complaint. See Docket No.

29, at 9. also incorporated that discussion into its present Tentative Ruling. eeTentative Ruling, at 2

n 4

Put simply, McDade is not this case. In McDade an employee of the Ventura County District

Attorney s office illegally used the office s Medical Eligibility Data System to find information about

her husband s ex-wife s location at a batteredwomen s shelter. ee223 F.3d at 1137-39. Indeed, the

Ninth Circuit specifically noted that it was considering a case of first impression, presenting the

novel question ofwhether a state employee who accesses confidential information through a

government-owned computer database acts under color of state law. ld at 1139. There is plainly no

equivalent allegation in this case.

At oral argument, Plaintiff s counsel also argued that Frey, by way of his Internet postings, was

threatening to prosecute Plaintiff for violation ofCalifornia Penal Code § 632, due to her involvement in

separate instances of nonconsenual recordings of conversations with CongresswomanMaxine Waters

and Waters s husband. When the Court first considered the tweet at issue for this point, it noted that it

was difficult to discern tlle meaning behind it, but that it appeared Frey was referring to an incident or

actions that had taken place out of state, and that he was referring to potential violations offederallaw

Initials of Preparer JG CV-90 (06/04) lVllMINUTES - GENERAL Page I of 2




JS

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA


Case No. CV l2-8443-GW(MRWx)

Title Nadia Naffe John Patrick Frey et al.

Date April 19,2013

See DocketNo. 29, at 10. her briefing in relation to the instant motions, Plaintiffargued that Frey

was actually referring to Plaintiff s possession o James O Keefe s emails SeeDocketNo 53 at 9:1-3.

In the current Tentative Ruling, the Court expressed skepticism concerning what possible violation o

California state law that would have entailed for Frey to be threatening prosecution o Plaintiff. See

Tentative Ruling, at 3-4 n.8. Now, at oral argument, for the fIrst time, Plaintiff s counsel decided that

Frey must have been referencing Penal Code section 632.

The shifting sands o Plaintiff s theory is certainly understandable - the Court remains o the

view that it is unclear what Frey is talking about in the communication at issue. But the SupremeCourt s view in Bell Atlantic Corp Twombly 550 U.S. 544 (2007), is clear. You do not get to

discovery with non-fact-based speculation, and conduct that is merely consistent with liability is not

enough to get you there either. See id. at 570; see also Ashcroft Iqbal 556 U.S. 662,678 (2009);

Hartmann Cal. Dep t ofCorrections Rehab 707 F.3d 1114, 1121-22 (9th Cir. 2013). Plaintiff s

latest theory does not overcome this problem. As such, the Court confirms its Tentative Ruling and

dismisses Plaintiff s Section 1983 claim without leave to amend.

its present Tentative Ruling, the Court also teed up for the parties the question o whether

Plaintiffhad done enough to support her allegation that an amount in excess o 75,000 is/was at issue

in this case. In response, Plaintiff s counsel said nothing about the subject at oral argument. As such,

for the reasons more fully explained in the Tentative Ruling, the Court concludes that Plaintiffhas not

satisfied her burdeno

demonstrating that jurisdictional minimum. See also McMillian v. SheratonChicago Hotel Towel: > 567 F.3d 839, 845 (7th Cir. 2009). For that reason, the Court concludes that

diversity jurisdiction is not present in this action and dismisses her remaining claims, without prejudice,

pursuant to 28 U.S.C. § 1367(c)(3).

Initials o Preparer JG CV-90 06104 CIVIL MINUTES - GENERAL Page 2 o



EXHIBITC

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BreU 'C, Kimberlin schemed' 10 sons who cheated Kimberlin tn ~ r u g t ~ a l Kimberlin, could. not be the real pr a housewIfe near the_shadol;Vs-of·-of her'husband. Fred, Ga:and lie sawelude' juslice, wilh a series of bizarre .deals. were m ~ r k e d by dollar signs:. S p ' ~ ~ w ~ y bof lber: Again. the inmate' Ihe I n d , ~ a n a p o l i n o ' 1 o t ~ r .speedway and' rr)tln pulling out orthe 9 r i v e ~ a y 'inplots designed to murder. maim and , They w ~ r e ,to be roughed, up ~ o t I C i C d . , v ~ l I g a l o ~ . . . , ~ o u n d Its way t o . O ~ I O . T e ~ a s . Colom' late.inOOel car,,, .

rob hiSefit'rilies, CM 3te havoc 'a t .robbed. . _ 1 \ 1 ~ b e r l i i i h a r . b o r s ~ · s p ~ l a l hatred bl:1,an.d, back,: to I.ndlanapohs, , ' . Spe.edway police were puzzled 'Speedway and discredit th'e chief gov, . '1'HERE WERE six to t>e killed, f o ~ , Pylil,t. referring. h ~ r t : ' , ~ P o n t i ' . . ~ I o n g ' th:e way. detecttves found t he murder. Slie had ' no e n e m l ~ senunt;nt prosecutor. - - two 0: three 10 be,roughed up..and one us . PyhtL. Th.e d l l l ~ , U I ~ , ~ ~ b o m ~ r . , maimed .,bo,dies..• b r o k e ~ f,amiUes. they said..

These, plots occurred as lawmen or two Were to robbed. a source oUI med s p e , C I ~ 1 p l ~ n f ~ r ' , h l m , . . strange relat ionships and IOJernauonal . BUl she did In\'estigalorS learnfollowed the t rai l of the man who-' said l, . ' -. . In hiS dlstmctive. -printed style drug smugglers, , , - - h d hI S· d 0 .. W

, d S d h b b script. Kimberlin noled put:.. was a Th t 'I d- b . h er aug er. an ra DarlOn, asterronze, pee w ay Wit 0, S 10 ' . Instead of following throtlgli' on ' ' ' ra} en ' t;gan.. - WIt close, .verY close. friend. 'orJBrett1978, They were revealed to The In·.J' ' .. f ' .. . ..bachelor and. thereCore. VUlnerable. A a·brutal murder. ., :. . . b .d I' S ._- --k . fAA, I \ l m b e ~ l n s.o ,cr. the mmate tipped,off i il inmate ~ _ t h i r d on '- w a s · u r g ~ d - O S t d ' J I 197 8 J I · K J m b e r . ~ l n , The relationship et el a ~ p . o -,s t a: t a ~ e r , ,authontles. . . ' , .. r - • , . n ur u y. L.- . u 13 the pair was compltcated byal JUry, convlcttd Kimberlin 'of lhe , , lb arrange for, a woman to )icduce ,Scyphers/ a 65'year,old grandmother t rc t' f U B rt .

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TIlt InYOIllt.lon ,01'0 lOid Kiln, .Oenlzod t b1uNnd·wM. plUlk W. think it . . . . .1 th. homt or a~ r l l n Was • 81ll111d Rippl. bull/lfU' NO, W ~ l ' t Marll''I'lmt ,, '.... I I l m ~ ' l i n glrlf,iond. ·.. id a ' ourc•. •

IMn w/lO owntd I stOff IhAI sold .Wa' , ' ~ U n r i « . . . . , . AI Iht l lmt.• wos a ' ' '' oIt tk 10'Mlural r06ll, an4 Eonn Sh09. and. . N.hl q ~ , ~ k l y •• partn. U.S. MaC' 'ale Th.mu rauleo r,'

.: eM.th.I'lerv on I, ~ l I h 10llda. tI. , ,DonOY.n. wllO call PY 't Ol1It... P . ~ 1 c O l l < r ' . .ff1tt Is ')txt door 10 lhewI) I vo t.mn '/10 p t a . l k : ~ Ir.n, Ing . ,p.r.tlon .,,( • I U t h ~ orrlC. ~ C I l p i t < l . by lht I ~ . I pro'eeu'KtndtnUI m e d l ~ t l o n . *' . WI .anl t ~ 1 S 0 1a;r.•1ht 5 v l l e ~ . _ lort. t O'enou caused Som. wor-

IlIll. >.IM l u h i o n ~ b l . ilII.,nou , .NSiQ£·THE:$uilc.. .,'IMy •• • ry lhat·••n.lllye i n r O ~ l i o n mlchl bIlpt',rtd 10 ,h ~ b o n l e ,OtUp, . fred lho hy I. lho bombing . . . . _ le.k 10 Kimbniln. . le.k was t \ t rN• d . I ~ I I t 5 Ion unt.d .Orne,. inodifitd lllm on <100 1< d'lt<:tod. . . . h- 'I \ l m ~ l ' l i n ' t l n I M I . ~ l \ c( major 1M' ev ...nl Ie shot. d'Y-a l·ballO'ry.. . A ' ~ U n d Feb. 8. 1971l N . l h a ~ $ .nd.)u.na .mup\ ' ' , Lat., lob 'tporn showtd, , . . . , o a Donoyan we,t· ~ r p r U < d wlK n • Tex'

PoIko' 1kI llle dNI I m V ~ U n '. ehc 1lIi<:aI lou'nd only In Tove.. · .. .ba>e<f customs .acont called lhom •to' tilt 1 i I ~ 1 ' 4 JUli .. . ~ ; p l t f f l · s a n d i ~ ,-,: ' Fadml iri.Yesligat Inmtd Iolor .'ttJ'G aboUI Bl.le'. • ' '.

· , I l a l ' l o n , o t b ~ ,elatlonlhlp' ond bi l l . , .. thaI' ';Y.ninc Ihal 1M .. 'rch . : Ihe I l ' X I , ~ : R . :. nllot...... Ir n.,- 'In '.'quIO 'lnquJ,y lnlq b••k«r'/und '. ,' ••.•. ' ' .• • '. ·J •• )<son' COunty: propo,ly - Iale.· 'tnl small .i pl. ,,· al .n .irpor\ _ _

, A manlh late,. Sepl, I, within an . . .. l It d a I<lm»trl - lamlly ...I.. .t. nfar AII.e..Te. . . . TM .uslOm. 'C.nl , ' . I '

'. hall'. Ih,... bOmbs bl.SI Ild 1M Qulel i1ntoverod. a buritd t '1 I , , ~ , Tile pl,yln, .. hUMh. en'ered Bi.I...·s, . 'Brell C. KlIllberhn'll 1970 Chc\,rol.,.,. llu , Over' It>\ no,1 iiI . days, Ihe,. I'nk h.ld 1.000 pounds 91 m ' ' ' J ~ n . . n.m. In , n ll i. n. 1 crim••0mpUt ,· ' • C9T In Which bomb components found

, ; lifrt ~ i t l 9 t l . 1 eVpIOil.ns. ~ . u Ih.y could nol delermirye lho nnd le.. nod lie :I S a su.pn:lcd.drUC . .: Allhou;h 1M bluls ~ m o d 10 b, e...n.r o r I ho .drug. Ii . <onr,•. le4 tr ,f f lek., . Tho compuler'r'l>Orlod order.d 10 r.. .lwhtro h. \.til ked wllh' Acco,d,nG Ii. $OWou. Klmb.r1,n:: tt l in , ..... whtro would ••U'. A_ . 0 ~ l r . b . n d . bill no on. wu 1 .. t, rno,o, Inlo,maUOn could bt. O b i a i ~ e d Kimberlin. Kimberlin d.nled Ih. kn.w th. SI,.II' ' ' .r. llelplng poll.. ln.lI>m.£o ilII\ not Inju,y. 'n •• pIod,ng .d I,om Nilh.u.. .. Speedw3Y t>on\blnc 0 InJolvemenl . Ih. Jull. S<ypll.rs murdor probo. H.

IYM bAC :11 the p M k l ~ IOl of'SPff'(f. , . ,oll a bTC · d ~ ) ' . N I ~ h . : l u S .11:- When N ~ l h ; 1 l u s de.scribcd Kimber-' . Ln tile uDOlbotnbinp'. H • > once lned lO. gtl Ne-Ih.-us to, invtsU:; WO) Hluh S<- lool h u r l t t l . r ~ ..1 II. 1100 1\ :11 c. Kilnhrr.lin In J978. ~ n o W I e d 8 t d , . , . lin. the C l J j \ o m s , 3 ~ ~ 1 said Kimberlin: J W.SJUsl going for ride In Iht G.le, I.h. Slrtlll...· who look In Sandy;.1''1 £ Intn ,,\r. l l . n n ~ lit Wearing [ rparlmenl of rfenu Lal',. ac-nls would learn. K'mbo WIS 'landing ne.I,lo Bi.ler In llf. '<I\' rt on. nighL doing nothing meg.I. Il.orton·s d.ughl' 3flo' th. cr.nd·:;' \ I I ~ S IItt1' .mpUYl«t1 .nd InJurtfl.C; hlS uniform lin an d hls_ c o n s \ r . u , c l l ~ n . workers .4irporL . ,., a9d t got busted. It .... 111 'If ,be clC:ire<l mother was m ~ r d t r c d . J n l Q r m ~ n b re-

... ,1•. Sandra. , , boughl «1m•• •plo.l\t, in 19i5 10 Inr'ormtd aboul K,mberhn. ,hnk. liP in Ir.. , I , ' ~ : · Klmh ,ltn p,r;< tlrl . ported Klmb<:hn 'ell llIe b.g at Ih.,. ' EVEN DEFORE la. bomb As .gents 'sorted 0\11 dOUils. Ihe lSIasl >W y rock 50 lhey ~ o u k l bury 10 Iho marijuan, .muegllng lrad•. dJ.· , , , , - Sirai' ....ldtn. . 10 'rame ro, 1M· b1.. L IOCll .s .nll ' ' ' ' '' ' lho tflO$UIY owner . WestsHlt prlnl .hop C.lkod·. e el Lank, • , loma .genlS.bIlC.n 10 cheek him o uL N.ih.1us oblolinod p ~ O l O ' , of Ihe Spt'1d '.y bombings.

Dtpanmenr. Bu,•• u or Alcohol. 'To· .. t l g ~ t o , . , lrom Ih. U,S, Amy 10 They boughl I e.ploSlves. 1 0 T h. y d. . . .y.red he .n d OIh<r Hoo· nint men ' oslod In Iho T•••• pol . On M.rth 14,.1919. only. Ih ',day,.riel Fl....MlIs l tFI ~ n t d a .. port • •u.lomer king hlln to ,pro c,l<$ of oye. 200 .- Ih. sam.uplo· .ltri We .. openly renting heavy equip· bombln&- He b,ought Ihem bock 10 alte' Ihe etplosl\'os e rt dlsc ......rod

, l lund'ed,man •• lorce i n ' « t l u a t i ~ g duct m illry4M\'.'S Md 0111, ' 'o. laler Iinkod 10, Ih. Splltd ,.y ' m e ~ t to cao:v•• S=<I .ifst,ip 3nd. Indian.poll. andsliO 'ed IMm 10 fred by M... Sl,.,il.P ,d $cyphers ~ i e d . 01

•: Iho . ~ p 1 o s i 6 ~ . , er O\.. n ~ . n l r l 1 A I . r \ 4 I ~ '.. bomb. -:-'.'1 DuPont I-Iltl QUlItI at road oul or Ihe. s a g e ? r u s ~ . . ~ y , J l h ~ ( ,nm .t hiS Speedway h.m.,· At the Mad . '0 ,In ~ g 9 n l Iltr liMY INV&'lT10,\T'OIlS,. ru.1 d 1 l.lmont Ino. In ,•• 1. Kimberlin .nd hi•• ,des 'Thl, .. Ih guy Ihat •• 10 \II. . On May 2t Ih. M ~ , l o n Cou.nlynard, C. 11le 1 Nc,hIU aM PMrlck • 11) Iho Ine 'd·MI• •• 1I0d I O f J l l , g Q ~ I ABOUT TWO wP.I;;KS .• II.r hO Opet.lod so opt'hly.•om. 1oc••1drug ~ o o r thaI day. $cyph.rs. 10Id N e l , v ~ C , o ~ d Ju,y d.dtntd 10 ,ndici \ ~ I I ~

'. Dono\lln. 31. . C h ~ ~ ' . 1 J•• k i o ~ . 'kBa arf.sl<d,·Kimbllrlln w., rol.ut ll : t ~ ~ r r k : k o $01 oul of Iht dOll. Hc will, llul I wont 10 h,m .In ~ r & O n BtJ m.n 10' , u,der 01 JOI.•,Ntln.UJ. l . a l o M ~ o h l .,.lllf, On Stopt 2il, 19i1. lroi' d e t o ~ I I I ' ~ . ' ' I rom j.,1 . Th. eharc.. woro drOpped· O ~ I M ' t\'t, . ..Itd 0' ~ o b b t d ond b e r O ~ t . 1 ....eor to II.. . . $cyph.... With I. , .oulh I .

....31 'born on Ilalmt' SI'tt' on , I h ~ ,3\1'. lilli' ma •. d,rlll'd •• JI ,0cu,JIY tl\<,U$l ~ I a l o .nd Itdural prOiteUlors ~ ' l I e d by 'l\Ial drUC gongs. Ih.y said Nt,h.u. hUddled wllh M. ,o. witness, ,h.r. fl •• no t ••• 'CoSoulhSldt: ju.ol Icron Ih<I l \ f t ~ 1 0 ' lund, d,I \. up 10 IhO pool ' h o ~ In I ... nltd 10 dlC deepe, InlO hi. I , ..k· On r doy nighL. Feb 16. 19;9. Couoly P'••••• lor S10Ytn Coldsnllih him,. y:.. •

· sacred HUrl S'hool, Ills ~ l h Q r , Hr while 1970·Chty,ole llmo. lo , • Qround .,nd d ~ l d . whtl ' ho 'bOllld • ) ( I m ~ ' h n hi• •s><ici.I , «I up . ' _ . ~ ~ J . .. ~ c l l _ . r l \ ~ J ~ ' )1 ..... '11 10, ,Ih. IN iIl0VEMDER.. l\,m.be'ltn· en .. : I t , Nt'haul.. nnt. '... V i ( ' , , ( ' h l l r m ~ I \ ~ U ' lhnt l iM J ek.on 41rrh.td.. b · ( h . 1 r g ~ d • on stalt Or (ederal Ihto $(ttftl strip unMr eYe . mOM. Wilham IBdl1 Bowman of ~ ' H , l l ~ r C ' d guil l) ' p lea Ie consrnrKy

of the counly o..,Ot1'aUe a ny He we.t Ins,1k 10 .hock Oul Ih. < Om. eh. ... ..•• th. red.ral o c e n ~ Thc watrh. . . . . . ,1' •Monehesler. Oh io . , , . 'harCil, th. Teu, rparlju;ono .mug.Donova... a \l tt '1.n cI nln. , •• ,,' pllinl and .sked.Ihe ,, .rlly guard' IOn. . . . $OurCO ...;alled. Klmbot1in fcl unt,l U.s. lavy. radar .. ...,n' .pol· . DOW.1AN• • ul on bolld .n l h. Cline ••••. 1I......s.senlen,ed 10 •• '.- , , - o L A T F ' - M : r v k : - t . - m o v t d - - t l o t f - f r o ' - - f O t ~ k j ~ h n C . l l O b , . , C J : r ' d - t . h 3 l - h i s - b r ~ h ~ r . - ~ o t L - h a d _ l ~ . . a . J ~ m ~. ~ . . a I r l l n ~ r - o v t r - t h ~ - C u l l - a t m c 3 p e r . was arresti'd Onri'6721-10\irjNnlrrjaii, •

M i I \ l i a u k o ~ all•• M oblAlntd a d ~ g l ' O ( Who. lho roullno requos w.. . t,aveled 10 India wh .... h. SUppoSctlly 01 Mellco. lit.dIME for SoUIll. Te.os .nd .ppearod I. Mation County Mu. J(imbllrlio WI' lritd on tile Spt1d·lrom W ~ o n s i n Slot. Unlvm'ly. 'uSf< . Jocks. . o,d.rod 'he, .. .urlly , Iudi .d l ra • ~ n d e n l l l (ll.dIUiliO,n TilE NAVY caUed tht custom. nlf ipal Court· .n M3,.h l w.y bombinC . . . . In $cp'ember ..

Corolully I'tlIrnnu lragmen and luant I•• '1 In> ,h. . JackSOn I.tend· \lihh a lamous. c u ~ . 14. s:lld hIS agonls, who .. dloe<l Ihc W31.hers. f'ed Scyphers wa. In Ihe ' l y ~ l . n c c , /I 1 ~ . ~ I · ) u r y W:& unobl•. lo .. ach ~dtbtl. 01 Ih. bomb .h •• fo' 51udy by .-d ,. Lake Ihe man', name and Ie' hitn brotht' le:frntd ihc h,4 len or.. .1 the red.. .1drug .gen scrnmblcd on wo and Identified Bowman. dC=lOn on Ih. bombtn8 eha't' bu'- M ' - f / - ( o r i m f I ' b ~ r t r . 1 h t ' i n v n 1 i ~ I - R O : - b l l t ' l n O ' m l l l 1 ; r f ' l f r . ' 1 1 n 3 w 1 l t r t 1 ' f ~ m ) l S l e r i O U l l - £ a s t ' / 1 d - f N l S ~ - , » a n , o - l . i l ' l h o , - a i r l i M , - r ~ l ; . . J o o k t d . . . l i J < o . J J l t . . . J . u l l l L S > ~ J l ~ j n ' l c 1 e d him or I m p e r s o n 3 1 : r ~ •. I ~ d , - _tOtl .. on leamc<l II bls.1I W.,. 'll ...1 SOIM 01 I .k. mllll..y Ii· Iohln....·8r<tt bra•• ed 1M copo tn l l' T h. schom.; wa. Ih ...·•. w . ~ u r d c r W......OIYc:d.-;-- - : . . ~ , - . r l l · o i •• , and olner m,no, . h l i r g ~ ' l .• ,uM d bl' crud. bul .1f.,.I;'. b<Jmb, ••nJ... ItrtSl .hlm bil l ...... u l d ~ . \ l U > _ o l d h , m . _ d . n $ .. 'og,.OYe,.d·lh.-.jrstnp .nd 'he II ledcr.1 g,ond Jury ,nalCl.d X,..,. JUd.r. •..J.m•• E. Nol.nd ord.red hIm

Th . U'''ers ....d mQllifi.d blu. and Calli 'f h.... r r ; ~ ~ O U Y e .. h ~ c l i 1 i i i C < f h l n i r o t h e r t ~ u G h \ p,lolJi roulen' ' ~ n d . I ha ... 10 abo,l. · be, lin ,n SP4 C(lWIY I»mblnR t ~ l ~ 10 A'i'yonr torm. . h l l W . ~ J n t , , , p p l l i l n t ( P ' l l m . , t T r - : - - n. u ' I '. '. , ~ , , , , h o \ ~ t l i .. \o .nd dl p...... 11. the 11101 ,.d,oed to Kimb ,in .nd . o c . . . ' ~ ' & On o n ~ , .1 D')·lon. Oh,o.~ , p ~ , ~ , 1,0' • $1'011 dr)ol'lI ~ ° a h n I ror n ~ I , ~ l i g n t h. ~ ~ ~ , I I I ~ 1)(' < ~ u ' d d l S ~ P I I U ' from ,compony, I .m oul. or tuel.nd COl '0 - o . . . : . ~ i . r t h 11. t\.lh.u, ~ · l U h o m . 'St'iill E. Klrn\) ,I1•. ·il' 'rde'od I. ahAIlN,' 'h,ouBh itn t l ~ t I r l l O l f t . l l n ~ .• 0 I • mlln .1 #1\ ' ~ t 1 I . , . . ' I_nd , ,wh.n he gOI •• • Irom AILiIln. T.. .£ r o b b c r ~ . II . w. . . . hot wllh ,ho\ \

·(,IP ~ h O l c d InlO . rm., . IlIU''',' niU lti, .. ,houUJ Iw: JIllird J' I k ~ . n itt ' , ~ I ,oqur U, M,l. ,1 :1r10n Th. pl .M.• 10u,.• n ~ i M O C ~ . , ',, ' Sandra B ' r l u ~ ' ... P.tnein l><llt.yed 10 It hiS o 'n gu., II 'i.'a> 'nluI;<, .1 T o'•• 200 Tow.. . ,omit . • . Acree< 10 'n e .... wllh t\.,h'Uil c . r r ~ , n s lb.ooo pound' .•r R r G h . g r ~ . St,.,L who had . ·o'k.d CI•• wllh '.MI15 Il.pu hniltd 01 Ihe Ould ,

,tAlt ftrl .,plosIV. ptoduc.d 10 r., I' t n r . l d d I J ~ , , J ' . ( k I Q ~ ... ' 1 4 I k l l l ~ and .Don'ovan. \I look plit• • • Ih. Colomb 'n morlju,,, .....pptd in bur·, polite '0 h. lp solY. Ih. 1l\U1if., .r her Spon. Hudqufr lc r•. Daylon. on'S<pt.placo d ~ M m l l o . '• . ) i,1 itn cnn, , ' I , I»\tr, lin O\I.n,nc or N.... J7. 19l$. - Ihf lam. lop. A. Itw. Jlilot ~ d . d rorIhe .Irpo,1 mOI r.· ' rio 19n. by • , .I ,U.. of • miln .u,

AS W· AGENTS and O\t... p. .e· . 1 : · ~ · i 7 1 I 1 i ~ · S . ol,:ornoyNl,nd ~ o . , nleM lour y.ung periOr; who 'o,ktd . 01 COlulta. Te.os., .boUI 100 miles ' ' ' lou better .il down. you won't peeltd 01 w o r ~ l n g whh 8reu In drug Im{ n 'rAC'ho ~ ' n s who ~ hI tho ' ~ ~ C h i m ~ l f $e('un YIta, f v ~ r I ~ n l l . '.-a Q S ~ \ W a y Burger C.ht rtslaUtanl lI,way. the ~ i r e ~ w k.cked the million - b e l i e v ~ this.- she predicttd, J w:aG · . c h e m ~ .Thf bought .a b:Dx of11m. al IlIeir on\y 10<01 sal BOUlItL , ... ore k,.dnopptd and .1.ln. Mrs. Borton dollar c.rgo O U I I ~ door. To.. . Po0lice. .. ~ k i r i g my yortl .nd lound w .i23 .alrber bullel.S allht sam. bm •.CraMm 1(1.C1roni(;. OIh .... tr'eq to VA.. ORA LED ~ , c . k . O ~ lie lold .. story Iful ,W_' I. ,,.. ••p.nd.d . ,klIne horsts. 1,Ior l o u ~ d .ma,,)u.no und , ••Oda: trot n. d I. hOli.Se. ON S £ P 1 ' . ~ . 19i8. Breit Kimbe,hn I

unCOItr 3 moll\·. 10' tho b t a ~ t . 'Md hit ~ . m . W'S K,mber,Iory' 0, ,nlo an . ,b ror Klmbe,lIn, l l o l . ~ .,trewn 125 mIl.s of d.· t round llmt;rs .nd uploslYCS- a. arresttd Alter' h<- gOl Oul 0' a 1900 \l\lmbe,hn .. . ,Ild 10 Ihe only someth,ng '. ' • . .tALTIIOUGH surprised by Iht ser l , A . u r p n ~ NtMUS.IOld hor not to Cht, ,I.t bouChl al. Oaylon on Sopt . .

on.... IIh • poJs'bi . motlvt - .\0 dll ~ , ~ . n.m. ~ k t d 1111 and fOl t' ..nl. ,••••tlC.. OfS nt'\'er M.,n 'll,It, lho w a l . ~ ' ;0 1 1 louch th. l? g. 110 dlSpa,.Mtd an aton, 13. 1978. Fed.• r31 '·C.nls loun4 a box .,I ' ~ t l pol,•• Illoniion frOm Ih. lor, Do 'n. w. r. look'ng ., I . ~ I ,u1 able IQ e.',bU.h any .. e41bl. ink Ih. J<lmberlln g.ng .Uer ..... ,d .ho.. om lho ATF of II•• ,01 Auslln to lak. .22J ,mmu.. l,on >OUght from 'he Oul .So) pt..,., mu,d., ••0 d.iAY· 0' h.lt 1M. 1M S t d ~ . y b o : ' n ~ s . 'yllll 1><11 = tho Bu'ger Cher .mqrdo15 and Ih_gh Ih. I U ~ b l . w . .d. and sage' charge or Iho exploAlY,? doo, SPO' Headqu.n= In Ihe ronk .'hoi' qUI.1 inlU1I81110n 01 101m snAppod, . Ih. bomblngl.1 bru.v.. They c o n ~ I S . ' l e d an ~ ~ . n ~ 1 or THE BAG ton13ined bl•• l i n ~ .aps. of whil. Ch.vrol'l'

• .Thr f l ~ P 9 r t ~ d IlllalClr..t d l ~ , , t . 1M g o ~ O N 1 m c n l I . i tr l qUickly ~ 3 r ( ' h i n g for J\imbrrlin's ~ I « ' Mo'upont. Including. 3 fulun.shc e l ~ C b'ut-and'whilt Mark Timr l i m ~ t $ . .on . Last Thur,;ItJ,)'.... r ~ ~ r . l l J\IryMcon11/1) I. 100. ATF Iltnl. pou,ed mlo· It I 'n ,, OIiOn I t , p t ? n ~ e d , Illatk, te<le.·llcnz ,ed.n. InvbilCalors '..01' tronlc. ' I U ~ cun .aw . T - ~ S A R . . PIS' AR,IS ,U1e .nd 14 plaslic.. e,td sou. ,',.,td g u Kimbe in or liltI.d,an.pull•• nd beRM I 24''' ' ' ' ' ' iu' On. WIS d t<:led at obulInlng I .4 it in a DOYlOn ,Ohio) repair shop. 101. WIh .11....' .. A f I I ' ~ t i n ~ , p o , ~ n · ; O 8 ~ of To u :lO wilh lOel0f)' m.,k. way bombing eha,& ,,,<,II'fI<' 01 him.• n.pping pl .lu,, ,, .e3reh WDITanl 101 t ht I 'r o Irnp.lii. Kimberlin lal<r ,••uflod the ca, 'as lipped bullols and·m.kuhl 1 5 ( ' ( ~ l ) t y 'iog. Ihol lod rlChl b,.k 10 111. IWO' II. f. , Kyc ,1 lifetime> ,n prl,omhidcl<n·loc>lions . ™ olMr WCIII 10. Ja.hon County low.d wh.n II dov.l0i><d el ,, I· Gu.tIrd uniloms. e.sos or Toyo. boughl by Kimberlin .1 .011. H. l\;Ild hO will oppo.l, Hf I. 27

Tht po<lU' w.. . m c d , h olh whh.... hKlldmbo,Ion :0:I IUppotl1od .10 cot p'oblems qn S<PL 1918 AFTER TilE arrtJt. N ~ l u s s Btlmonl. Ind .. In 1975: y.o old. .t ~ a n d s h o w n o U I ~ ~ r ~ s ~ l ~ e ~ ¥ ~ a ~ u l t u r ~ ~ n l h ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~Graham ,Iores 10 lr M y could S l h O h ~ 1 Por\'lI. n ~ a r Hu_sliln, .

DICk oul rna.. . /10 bouChl Ih. When nil .ctnl Jack Yora POPPedlim. . - oP;;' Ill< Ch.vy'. trunk, h. benl over i

.Th.)· sa,d K,mberhn lookc-d .lik.· and beg, In.. .torylnG Iht tOntenh.m'n Tnen ho 1.1 OVI I )'ell and ,ollonod 10 I

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12/11/13 Retrolndy The Speedway Bombings Part 1 I Indianapolis Star I indystar com

JOBS CJlRS HO MES APART MEl\ fT S CLASSIFIEOS SHOPPING

Sport, B , o ~ , u hog 00 0 00 IY l: R ~ W _ h a t j O ~ ~ ~ O O k i ~ 9 for SEARCH

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Retrolndy: The Speedway Bombings PartFo r a week in 1978, th e Town of Speedway was terrorized by a serial bomber

,la . 9. 2013 i :06 AM

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Retrolndy

It was a bo ut ten min utes b efo re 1 0 p .m. o n Sep t. 1 , 1 97 8 whe n the

firs ttwo b omb s wen t off. A third e xp lo de d at 10:45. They d beenp lac ed in tras h c an s and d umps ters a nd n o o ne h ad b ee n c lo se

e no ug h to b e hurt, b ut the b la sts we re p le nty la rg e e no ug h to d o s ome

real damage.

Still, it seemed like it might have been the work of teenage boys, who

may have been sufficiently startled by their own handiwork to

reconsider how they spent their idle time.ADVERllSEt.£NT

. T-hr-ee-Silparate-explosions. -within minutes rockeffSjleecfway ,

F r j d a Y - ; - n l g b t ~ - f r i g t e m n g ~residents. and baffling local

= = . police. . .· N o - ~ . i D j w i l s , · ; l l · z n 1 p r i n I : d ; af.:

tIlough several persons suffered mi. ior.e:u:.s trom flying g1m olhtr ikms.

• The sNtl.ertd Windows m:I explodtd·lnSh d.WnpslerS l so causei1 SQlIlt prop-

.. a 1 t b o u ~ ibe.e:ttell1 was DOtimmediateTy known.

. The rash or explosions be •L -

9 :50 Il:m. when a trash eontail . Z ). _

Read the story

More

INNN.ind 5tar.com article/99999999/NEWS 6I 00919012/

But the next night another bomb went off, and

then another.

On the fifth n ig ht, a Speedway police cruiser

was blown up. It was p arke d a tthe Big EagleApartments, at 19th Street and Cumberland

Road, where Patrolman Steve W. Turner Jived.

Tumer was on vacation so the cruisier had

been parked unused for a while. Earlier in the

day, pofice had responded to a false bomb

threat at the Coca-Gola plant on 25th Street,

and some wondered if that h ad b ee n a

d iv ers io n to k ee p the m o cc up ie d while the rea l

bomb was planted.

So far there had been n o s eriou s injurie s - ju st

some cuts from debris, but no o ne h ad b e en

very close when the bombs went off. On the

sixth night, that changed.

was at Speedway High School where the

freshman football team had just played a

game and the players were still getting

dressed. Hmdreds of parents and students

were either waiting in their cars or walking

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Retrolndy. The Speedway Borrbings, Part 1 lndianapolis Star I ind}6tar.com

through the parking lot after the game.

A Speedway HighSchool gym bag had been

left by itself, if forgotten by a player. One of

the parents, Carl Delong, 39, walked over to

retrieve it when the bomb went off. His right leg

was nearly blown off and his left leg and right

hand were severely damaged. Doctors tried to

save his leg but had to amputate.

ADVERl1SEMEHT The bomb that maimed Carl Delong on Sept.

6 1978 tumed outto be the last one, but

residents of Speedway didn't know that Each day people wondered

when and where the Speedway Bomber would strike again. As far as

the public knew, investigators had no idea who was behind it.

But local police, assisted byfederal marshals, did have their eye on a

suspect; someone they theorized might even have set the bombs to

distract attention from another crime - a murder.

continued

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12/11/13 Retrolndy The Speedway Bombing s Part 21 Indianapolis Star I indystar com

Retrolndy: The Speedway Bombings PartBuilding the case against Brett Kimberlin

J I

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FILED UNDER

Indianapolis ews

Retrolndy

Broad Ripple

On July29, 1978, peedway resident Julia Scyphers, 65, answered a

knock at her door. A man she didn t knowwas standing on her stoop

asking about items she d recentlytried to sell at a yard sale. She let

him into the garage to look at the items and he shot herin the head.

Mrs. Scypher s husband, Fred, 68, heard the bang and came out in

time to see a car pulling out of the driveway. He would later tell police

he d gotten a glimpse of the man who d come to the door.

When police began looking for a motive in the Scyphers slaying, they

found there d been a recentfamilyclash. Julia Scyphers daughter,

Sandra Barton, had become involved with a

man who seemed to Mrs. Scyphers to be

inordinatelyclose to one of Barton s young

daughters Mrs Scyphers told friends she was

so concerned that she d arranged for both of

her granddaughters to come live with her.

YNNI incl}star ccm artidel99999999/NEWS06I100919013 1/5



12/11/13 Retrolndy: The SpeedwayBombings Part 2 Indianapolis Star I indystar.com

airst rip. But t here w as a heavyf og t hat night and the pilot radioed t hat

he could not land at the makeshift airport and would have to set down

at real airport nearby- but t hat meant he had to dump t he cargo f rom

the air. The men on the ground and the agents observing them

converged in the desert. Nine men were arrested including Brett

Kimberlin.

Back in Speedway police showed photos of the men to Fred

Scyphers. They already knew man he d glimpsed t hat dayw asn t

Kimberlin because Scyphers would have recognized him but now

Scyphers picked out one of the other photos. It w as a n O hi o man

named William Bowman and based on Scyphers ID he was then

arrested and charged with the murder. Police still believed Kimberlin

was behind it a nd h op ed t o get Bowman to reveal the connection as

he f aced his own t rial.

But Bowman neverwent to trial for Julia Scyphers murder nor did

anyone else. Fred Scyphers had t erminal cancer and died on March

14 1979 about w weeks after Bowman s arrest. With no witness

t here w as no case and t he charges w ere dropped. Even had he lived

there was no certainty of a convict ion. H e had barelyseen the manwho d come t o the door that day and h ad o nl y b ee n a bl e to p ro vi de a

positive identification of Bowman after undergoing hypnosis.

Bowman s lawyers meanwhile were prepared to bring witnesses

putting their client in Ohio on the day of the murder.

Butwith Fred Scyphers dead t here w as no case against Bow man

and withoutBowman s still-theoretical testimonythere could be no

murdercase against Kimberlin. Investigators pursued a few weak

leads unrelated to Kimberlin but the Scyphers case quickly went cold

and remains unsolved.

Investigators had a much stronger case against Kimberlin forthe

Speedway bombings but i twould take three separate trials to convict

him of t hat cr ime. The f irst t rial in 1980 ended in a hung juryon the

more serious charges but he was found guilty of impersonating a

Department of Defense security guard. That got him a 12-year

sentence on top four years for the Texas drug conviction. In the

second Indiana trial in June 1981 Kimberlin was convicted onlyof

illegal possession of explosives. The t hird t rial t ook 53 days and 118

w it nesses and ended w it h a convict ion on the bombing charges on

Oct. 15 1981. e was sentenced to 50 years in prison.

After Kimberlin was convicted investigators revealed to The Star

more details on certain aspects of the c as e t ha t h ad no t y et c om e t o

light. Reporter Joe Gelarden who had covered the case throughout

compiled a detailed narrative of the investigation based on

information and documents provided by the investigators.

While Kimberlin was in prison Carl elong committed suicide. Had

his only injurybeen the loss of his r ight leg he might have adapted and

moved on. But his lef t leg had been severelydamaged t oo and he sti ll

carried shrapnel in his body which kept him in const ant pain as it

slowlyworked its way out. After operations he hita plateau

physically and knew he d neverget anybetterthan that On Feb. 23

W N N i n d ~ t a r c o m a r t i d e l 9 9 9 9 9 9 9 9 1 N E W S 0 6 I 1 9 9 3 5



12/11/13 Retrolndy The Speedway Bombing s Part 21 Indianapolis Star I indystar.com

1983, he closed his garage door and sa t in his van with the engine

running. later that year, Delong s wife, Sandra (who had also been

injured in the bombing), won a 1.6 million judgment against

Kimberlin in civil court

Five years later, in 1988, Kimberlin vaulted himself into the national

news when he claimed he'd once sold potto Dan Quayle, then a U.S.

Senatorfrom Indiana and candidate for vice president. Quayle

vehemently denied the charge and Kimberlin produced no proof

beyond making the claim.

Kimberlin was paroled in 1994 after serving about 13 years of his 50

year sentence. But when he made no effortto pay the Delong

judgment his parole was revoked in 1997 and he wentback to prison

for about four more years, released again in 2001.

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EXHIBITE

ApPLICATION FOR STATEMENT OF CHARGES

FILED By BRETT KIMBERLIN MAY 27 2 12

AND TRANSCRIPTION OF THE SAME



TRANSCRIPTIONOF R TT KIMBERLIN S ApPLICATION FOR STATEMENTOF CHARGES

To assist this court, the following handwritten portions of Brett Kimberlin s Application For Statementof Charges filed on May 27, 2012 have been transcribed. As this court is likely to know, in Maryland

any citizen can walk into a commissioner s office and file charges against anyone for any reason. For

good people this is empowering; for those with malevolent intent, it is easy to abuse.

Please note that this application contains several falsehoods but it is given to this court here for the

purpose of showing when the alleged intimidating comment ( Don t show up in court Tuesday or you

are dead. ) was allegedly made. The Plaintiff alleges here it was made on May 26, 2012. Please note

that 1 the application contains numerous falsehoods, 2) the charges were dropped quickly, and 3) the

peace order was dismissed.

This is an honest best attempt to transcribe the Plaintiffs remarks in order to help the court to decipher

the Plaintiffs writing. It might still contain errors of understanding or even typos. Obviously the

primary evidence of what Kimberlin wrote is his own writing and this court should exercise its own

judgment in interpreting it

This transcription will skip over most of the non-substantive parts of the form. It only transcribes the

paragraph under the words APPLICATION FOR STATEMENT OF CHARGES and subsequent

pages. Clarifying remarks in brackets will be offered in brackets.



APPLICATION FOR STATEl\1ENT OF CHARGES

I, the undersigned, apply for statement [sic] of charges and a summons and warrant which may lead to

the arrest of the above namedDefendant [Walker] because on or aboutMay 22-27,2012 atMontgomery

County, Maryland, at my home as seen on my computer, 8100 Beech Tree Road, Bethesda,

Montgomery County, the above named Defendant violated a Peace Order issued onMay 22,2012 which

prohibited rWalker from harassing me, contacting me, and specifically by electronic means via the

internet.

[page 2]

rWalker has tweeted on Twitter about me in alarming and annoying ways over hundreds of times the

past week and urged others to attack me. He has generated hundredsof

blog posts directly andindirectly about me based on false allegations that I framed him for an assault.

r Walker has had many people threaten me directly with death and told me to stop talking to the

police, and not to show up in court or I would die. I received these threats over the past few days via

email.

rWalker has urged people to intimidate me if I come to court on Tuesday by tweeting for a mob of

people to show up. He said he would make me pay for seeking legal redress.

The Peace Order prohibits as special conditions threats and no electronic contact.

[page 3]

I have received many threats by Electronic contact on behalf of rWalker. On Saturday, May 26, 2

[sic] at 7:57 pm, A message from Aaron-Don t show up in court Tuesday or you are dead. This is

your only warning. On Sunday May 27, 1:24 pm, If Brett does not start acting like a grown up and

quit calling the police on people like a little punk. There will be hell to pay. On Saturday May 26,

2012 @ 7:03 pm Brett Kimberlin is done.... the hunter is the hunted. On Saturday, May 26, 2012 @

1:15 am We knowwho you are and we re coming for you You will pay.

The Peace Order was issued by Judge Steven Johnson on May 22, 2012, at 10:00 am for stalking andharassing. prohibits rWalker from causing severe bodily harm, fear of imminent serious bodily

harm... harassment. stalking...

prohibits contact by any means, attempt to contact or harass, prohibits entering

-



[page ]

residence or employment anywhere and prohibits threats and electronic contact

Mr Walker has urged people to publish my address and phone number on the Internet and they did

Many people have called my home the past few days to threaten me on behalf Mr Walker A man

called on Friday evening and said he was an Iraq veteran who would kill me

The Peace Order is

060lSP019792012

and it is in effect until May 29 2012

[unintelligible]



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UNITED ST TES DISTRICT COURT

F O R T H E ~ T I U T O F ~ Y L V IGREENBELT DIVISION

BRETT KIMBERLIN

Plaintiff

v

NATIONAL BLOGGERS CLUB et al.

Defendants

Case No. PWG 13-3059

ORDER GRANTING DEFENDANT WALKER S MOTION TO DISMISS

Upon consideration of the Defendant Walker s Mo tion to Dismiss Defendant Walker s

Memorandum of Points and Authorities in Support thereof and any opposition thereto it is this

day of January 2014 hereby

ORDERED that Defendant Walker s Motion to Dismiss is GRANTED as to all claims in the

instant case; and it is further

ORDERED that such dismissal is GRANTED with prejudice.

RICO Motion to Dismiss Memorandum (OCR)

Documents

Transcript of RICO Motion to Dismiss Memorandum (OCR)