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
WALKERS MOTION TO DISMISS


ii

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ARGUMENT 1
I. THE PLAINTIFF HAS NOT STATED A CLAIM THAT THE DEFENDANTS HAVE
VIOLATED 18 U.S.C. 1962(C) 7

A. The Plaintiff Has Not Properly Alleged that the Defendants Engaged in Racketeering
Activity 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 to
Commit Extortion in Violation of 18 U.S.C. 1951 11

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

(A) The Plaintiff Has Not Alleged Any Fraud Related to NBCs 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.
Walkers Job 20

(D) The Plaintiff Has Not Alleged Any Fraud Related to Mr. Walkers Alleged
Assault Against the Plaintiff 21

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

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

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

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


iii

D. The Plaintiff has Not Properly Alleged that the Asserted Racketeering Activity Has
Proximately Caused Injury to Plaintiffs Business or Property 30

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) 31

III. THE PLAINTIFF HAS NOT PROPERLY ALLEGED A VIOLATION OF 42 U.S.C. 1983
AGAINST 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 Plaintiffs State-Based Claims Should be Dismissed Because There is No Valid
Federal Question 39

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

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

1. The Plaintiff Doesnt Have Standing for Any Claim for Common-Law Fraud
40

2. The Plaintiff Doesnt Properly State a Claim for Defamation or False Light
Within the Statute of Limitations 41

3. The Plaintiff Doesnt Properly State a Claim for Intentional Infliction of
Emotional Distress 45

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

CONCLUSION 48



iv

TABLE OF AUTHORITIES

FEDERAL CASES
Al-Abood v. El-Shamari, 217 F. 3d 225 (4
th
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 (4
th
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 (7
th
Cir. 1986) 42
Kimberlin v. White,7 F. 3d 527 (6
th
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 (11
th
Cir.1991) 12-13
Phillips v. LCI International, 190 F.3d 609 (4
th
Cir. 1999) 13

v

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 (2
nd
Cir. 1994) 13
Smith v. Esquire, Inc., 494 F. Supp. 967 (D. MD, 1980) 45
U.S. v. Aragon, 983 F.2d 1306 (4
th
Cir. 1993) 10
U.S. v. Ardito, 782 F.2d 358 (2
nd
Cir. 1986) 10
U.S. v. Bledsoe, 674 F.2d 647 (8
th
Cir. 1982) 27-27
U.S. v. Kimberlin, 805 F. 2d 210 (7
th
Cir. 1986) 1, 42, 44
U.S. v. Shively, 927 F. 2d 804 (5
th
Cir. 1991) 25
U.S. v. Tillett, 763 F.2d 628 (4
th
Cir. 1985) 27
US Airline Pilots Assn v. AWAPPA, LLC, 615 F.3d 312 (4
th
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

vi

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

vii

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 Didnt 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/

viii

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 KIMBERLIN (1996) 43

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 45

R. Joseph Gelarden, Kimberlin Case a Maze of Murder, Deceit, INDIANAPOLIS STAR, October 18, 1981
at 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, INDIANAPOLIS 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 INDIANAPOLIS
STAR, (available at http://www.indystar.com/article/99999999/NEWS06/100919013) visited December
7, 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 Breitbarts children, author
unknown, (available at https://secure.piryx.com/donate/c97AfwVc/Remembering-Breitbart/) visited
December 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 Kimberlins 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 at
http://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 Defendants 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 Im 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 (7
th
Cir. 1986) and terrorist known as The Speedway
Bomber, Kimberlin v. White, 7 F.3d 527, 528 (6
th
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 Plantiffs 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 enterprises 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 (4
th
Cir.
2000). The Plaintiff has not met any of these elements.
First, the Plaintiff doesnt 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
Plaintiffs 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 Plaintiffs complaints
are to the Plaintiffs First Amended Complaint unless otherwise noted.

4

or making other claims on their websites and blogs.
3
In many cases, the Plaintiff doesnt 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 doesnt allege that they
were made with knowledge that the statement (or implication) was false. In every case, the Plaintiff
doesnt 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 doesnt 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 individuals 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 Kimberlins 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 Plaintiffs 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 doesnt 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,

6

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 Freys 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 doesnt 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.

7

Further, the Plaintiff doesnt state a claim for which relief can be granted for any state law claim.
First, the Plaintiff doesnt 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 Plaintiffs 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 Assn v. AWAPPA, LLC, 615 F.3d 312, 317 (4
th
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 enterprises 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.

9

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 doesnt
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 Plaintiffs 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 (2
nd
Cir., 1986); cited with approval in U.S. v. Aragon, 983 F.2d 1306
(4
th
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 doesnt 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 Plaintiffs 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 dont 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 Commit
Extortion 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 Plaintiffs 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 didnt
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 Plaintiffs 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 didnt 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 18
U.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 (11
th
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 (2
nd
Cir., 1994); see also Phillips
v. LCI International, 190 F.3d 609, 623 (4
th
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 doesnt properly plead fraud in
any one of those cases.
(A) The Plaintiff Has Not Alleged Any Fraud Related to NBCs 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 doesnt specify which statements
were fraudulent, the speaker, or where and when the statements were made.
Further, the Plaintiff doesnt even allegelet alone meet the heightened pleading requirements
of Iqbalthat 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 Akbars 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 cant 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
Plaintiffs complaint, it is not sufficient to make out a claim of mail or wire fraud. That letter states Id
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 didnt even contain an address. If the reader suddenly felt like
sending a check, she wouldnt 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

doesnt 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 NBCs 501(c)(3) status.
(B) The Plaintiff Has Not Alleged Any Fraud Related to SWATting of Defendants
Walker, 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. Freys 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 Plaintiffs 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 Patterico
8
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 doesnt 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 OKeefe as
saying, Kimberlin... pioneered the art of swatting[.] This constitutes only a few lines in a book that
by the Plaintiffs 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 doesnt claim that this alleged falsehood is material and given that the alleged falsehood takes
up only a fraction of one pageliterally less than 1% of the book as a wholeit seems unlikely to be
material. The Plaintiff doesnt allege that this book, written about the authors attempts to combat
election fraud, is significantly about him, or that anyone bought the book in order to read what Mr.
OKeefe 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 hasnt 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 theyve used against their ideological foes is SWATting[.] The problem is that because
of the Plaintiffs 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: Kimberlins 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.
Stacks 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 isnt 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 dont
know it is Brett Kimberlin or his allies; for all we know it could end up being a hoax. In paragraph 59
the Plaintiff doesnt 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 didnt 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 didnt 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 doesnt allege that the
statements or implications are made with knowledge that they are false. In fact, the Plaintiff doesnt
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. Walkers
Job.

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. Walkers 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
didnt 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 doesnt 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. Walkers job.
(D) The Plaintiff Has Not Alleged Any Fraud Related to Mr. Walkers Alleged
Assault 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 hospitalthe 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 didnt 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 Walkers 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 Laundering
under 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 doesnt 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 doesnt 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 statutes 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 doesnt 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 Witness
and 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 doesnt 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 of participation in a federal proceeding,9 or for
providing information related the commission of 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 Plaintiff be sent back to prison.
Assault might be covered by that, but the Plaintiff has two problems in making that claim. First,
claims of 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 if 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 18 U.S.c. 1515(a)(1) an "official proceeding" is defined as relating to federal cases. See US.
v. Shively, 927 F.2d 804 (5
th
Cir. 1991).
10 It is particularly important to disregard that conclusory allegation of 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 if she sought custody of their daughters, and that he had
committed repeated violations of Maryland's law barring "statutory" rape, MD CODE CRIM. LAW. 3-
307. Mrs. Kimberlin was understandably terrified about what would happen if 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 of 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 doesnt allege obstruction related to federal
proceedings as required by 1503. He doesnt allege bribery as required by 1510. He doesnt allege an
intent to facilitate illegal gambling business as required by 1511. He doesnt 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 doesnt 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 Plaintiffs 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 (8
th
Cir. 1982);
cited favorably in U.S. v. Tillett, 763 F.2d 628, 632 (4
th
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 (4
th
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 personthe Plaintiffwas a bad person, so that those people would invest in efforts to counter
this persons 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

28

663. Therefore, [t]he Enterprise requirement must be interpreted in this light. Id.
Accordingly, a complaint alleging an enterprise as an association in fact under 18 U.S.C.
1962(c) must demonstrate by well-pleaded facts that this alleged enterprise has some continuity of
structure and personality, and the participants must maintain a common purpose. Id. at 665. Striking
out all conclusory allegations, there simply is no allegation that there is any kind of structure at all.
For instance, the Plaintiff alleges no facts suggesting that there is an ongoing organization,
formal or informal, of those associates in which they function as a continuing unit. Id at 664. He
simply asserts that there is such an organization without alleging any facts to back that assertion up. See
Iqbal, 556 U.S. at 678 ([n]or does a complaint suffice if it tenders naked assertion[s] devoid of
further factual enhancement[,] quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
Further, there is little attempt to explain its hierarchy, to explain who calls the shots and who doesnt. If
this is a mafia, who is the Godfather? Who is the consigliere?
Indeed, there is no rhyme or reason to how persons are chosen by the Plaintiff to accuse of being
in this alleged enterprise. In paragraph 97 the Plaintiff alleges that [m]ore than 15,000 results come up
on Google when pairing Brett Kimberlin with Swatting. And yet the Plaintiff has not sued 15,000
people. In paragraph 85 the Plaintiff claims that [m]any of the Defendants and other non-defendant
bloggers and reporters believed that Plaintiff was involved in the swattings but doesnt explain why
some unnamed Defendants are accused of being in the enterprise even though the Plaintiff believes they
were innocently duped, while third parties equally innocently duped in the Plaintiffs eyes were not
named as members of this enterprise. The Plaintiff complains in paragraph 106 about pieces written by
Bob Owens, Tom Blumer, an anonymous writer known as The Neosecularist, William Jacobson,
Donald Douglass, Mike Rogers, and Patrick Dollard. But none of these writers are named as members

29

of this enterprise and the Plaintiff never explains why he thinks they are not part of the conspiracy.
Yet for James OKeefe, 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 Plaintiffs 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
Walkers frivolous federal lawsuit to extort a settlement that would require the termination of Plaintiffs
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 doesnt

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 Plaintiffs 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 Naffes 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 Plaintiffs
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, Freys 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 Attorneys 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. Browns 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 doesnt 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 doesnt 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

34

Plaintiff. Likewise, the Plaintiff complains that Mr. Frey fail[ed] to contact law enforcement when a
person threatened to murder Plaintiff id. First, no federal law or constitutional provision imposes a
duty on Mr. Frey to protect the Plaintiff from private violence. DeShaney v. Winnebago County Dept. of
Social Servs., 489 U.S. 189, 195-196 (1989). Second, the Plaintiff admits in paragraph 36 that
Defendant Nagy did contact the authorities. So in what way was the Plaintiff harmed by this alleged
failure, let alone deprived of any federal right by it? What precisely would have happened differently if
Mr. Frey duplicated Ms. Nagys efforts? The Plaintiff doesnt say.
Therefore, having failed to properly allege that Defendant Frey was acting under color of state
law, that Frey actually caused any deprivation of any right secured by Federal law or the U.S.
Constitution, or that the Plaintiff was harmed by such alleged deprivation, the Plaintiffs claims based on
42 U.S.C. 1983 claims should be dismissed with prejudice.
IV.
THE PLAINTIFF HAS NOT ALLEGED A VIOLATION OF 42 U.S.C. 1985.

Taking them out of order, the Plaintiff claims that unnamed Defendants have violated 42 U.S.C.
1985(3) and (2). However in each case, the Plaintiff doesnt allege in even a conclusory fashion, a
violation of any part of either subsection. The first two parts of 1985(3) and the second part of
subsection (2) require that the parties be motivated by an invidiously discriminatory animus and the
Plaintiff has not alleged such animus. Meanwhile, the first part of 1985(2) applies to the administration
of federal courts, and the Plaintiff fails to allege any relation to a federal proceeding. Finally, the
remaining part of 1985(3) requires a relationship to a federal election that the Plaintiff doesnt allege.
Thus having failed to allege that any Defendant met these crucial elements of 1985(2) or (3), this court
should dismiss all claims arising under this statute with prejudice.

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 highway
or 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 privileges
and immunities under the laws; or for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving or securing to all persons
within 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 and
immunities, means that there must be some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators' action. The conspiracy, in
other words, must aim at a deprivation of the equal enjoyment of rights secured by the
law 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 Plaintiffs 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 United
States 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 doesnt 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, Dont 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 doesnt 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 hasnt 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, or
defeating, in any manner, the due course of justice in any State or Territory, with intent to
deny to any citizen the equal protection of the laws, or to injure him or his property for
lawfully 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 in
state 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 the
laws.

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 didnt 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 allegeexcept in the most conclusory fashionthat 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 doesnt 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 Plaintiffs 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 grantedmaking dismissal of every federal claim
appropriatethis 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 Plaintiffs State-Based Claims Should be Dismissed Because There is No Valid Federal
Question.

The Plaintiff doesnt 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 Marylands 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 Plaintiffs 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 Plaintiffs 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 alllet alone extreme distressor 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 Doesnt 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 Doesnt Properly State a Claim for Defamation or False Light Within the
Statute 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
Examiners 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 Plaintiffs 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

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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 Plaintiffs 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. DeLongs 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 (7
th
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 plaintiffs reputation or if the damage had already been
done by others. 975 S.W.2d 70, 74 (Tex. App., 4
th
Dist. 1998) (the earlier newspaper articles and the

43

disciplinary orders describe conduct that would have ruined Swates 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 Didnt 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, INDIANAPOLIS 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 Kimberlins 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 KIMBERLIN 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,
INDIANAPOLIS 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 INDIANAPOLIS STAR, (available at http://www.indystar.com/article/ 99999999/NEWS06/
100919013) visited December 7, 2013, both attached at Exhibit D. Singers book also features

14
Mark Singer identifies the Plaintiffs 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 readers 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 Singers 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 doesnt
need to accuse a man who earned the nickname of The Speedway Bomber of SWATting to make
people think he is odious, infamous
15
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 (7
th
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 Plaintiffs reputation is so poor it is difficult, if not impossible, to harm it further. Like
in Longscope, the Plaintiff might at best obtain nominal damagesas indeed he received when he sued
Seth Allen for defamationand 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 Defendantsor
a statement placing him in a false lightwithin the statute of limitations, and having a reputation so
poor that it is not capable of being harmed by charges of SWATting, the Plaintiffs common law claims
for defamation and false light should be dismissed with prejudice.
3. The Plaintiff Doesnt Properly State a Claim for Intentional Infliction of Emotional
Distress.

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 Singers 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 Plaintiffs 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 proximatelylegallycaused 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 prisonwhich are only
supported by conclusory statements anywaywould 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 is
seldom attainable in this world, and some degree of transient and trivial emotional
distress is a part of the price of living among people. The law intervenes only where the
distress 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 a
difference between violent and vile profanity addressed to a lady, and the same language to a
Butte 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
complaintor by simple logic.
Further it would be unclear if any of the tortuous conduct actually caused the distress the
Plaintiff alleges. The Plaintiffs proven criminal record, for instance, has received a great deal of
attention in recent years driven by the Plaintiffs 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 Plaintiffs 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 eventswhich are not part of this suitcontributed 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.

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4. The Plaintiff Never Properly Alleges That He Was Damaged in Any of His State Law
Claims.

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
Plaintiffs 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 Plaintiffs 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 Bombers 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# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW72@gmail.com
EXHIBIT A:
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EXHIBITB:
OPINIONS ISSUED INNAFFE JI: FREY, ETAL
Case 2:12-cv-08443-GW-MRW Document 67 Filed 04/18/13 Page 1 of 11 Page ID #:1479
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
cv 12-8443-GW(MRWx) April 18 2013
. (;" ----
Nadia Naffe v. John Patrick Frey, et ai.
1 GEORGE H. WU, UNITED STATES DISTRICT JUDGE
Javier Gonzalez
Deputy Clerk
Deborah Gackle
Court Reporter I Recorder Tape No.
Attorneys Present for Plaintiffs:
Eugene G. Iredale
PROCEEDINGS:
Attorneys Present for Defendants:
Kenneth P. White
Alexandra Zuiderweg
DEFENDANT JOHN PATRICK FREY'S MOTION TO DISMISS FIRST THROUGH
SIXTH CAUSES OF ACTION IN THE FIRST AMENDED COMPLAINT (filed
01/11/13)
DEFENDANT JOHN PATRICK FREY'S MOTION TO DISMISS SECOND
THROUGH SEVENTH CAUSES OF ACTION IN THE FIRST AMENDED
COMPLAINT (filed 01/11/13)
DEFENDANT JOHN PATRICK FREY'S MOTION FORA SECURITY
UNDERTAKING PURSUANT TO CA. CODE OF CIVIL PROCEDURE 1030 (filed
01/11/13)
DEFENDANT JOHN PATRICK FREY'S MOTION TO STRIKE THE SECOND
THROUGH 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 reasons
stated 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 ofrecord
for Plaintiffin place and stead of Leiderman LLP. Defendants motions to dismiss are TAKEN
UNDER SUBMISSION. Court to issue ruling.
15
Initials of Preparer JG
---------
CV-90 (06/04)
CIVIL MINUTES GENERAL
Page 1of!

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Case 2:12-cv-08443-GW-MRW Document 67 Filed 04/18/13 Page 2 of 11 Page ID #:1480
Naffe v. Frev. et al., Case No. CV-12-8443- GW (MRWx)
Tentative Rulings on: (1) Defendant County of Los Angeles's Motion to Dismiss Plaintiffs
First Amended Complaint Pursuant to Fed. R. Civ. P. l2(b)(6), (2) Defendant John Patrick
Frey's Motion to Dismiss First Through Sixth Causes of Action in the First Amended Complaint
to Rule 12(b)(6) of the Federal Rules of Civil Procedure, (3) Defendant John Patrick Frey's
Motion to Dismiss Second Through Seventh Causes of Action of the First Amended Complaint
Pursuant to Federal Rule of Civil Procedure 12(b)(l), (4) Defendant John Patrick Frey's
Renewed Motion to Strike the Second Through Sixth Causes of Action of the First Amended
Complai.nt Pursuant to California's Anti-SLAPP Law, California Code of Civil Procedure
425.16, (5) Defendant John Patrick Frey's Motion for a Security Undertaking Pursuant to
California Code of Civil Procedure 1030, and (6) Plaintiff Nadia Naffe's Motion for Order
Relieving Leiderman Devine LLP as Counsel of Record for Plaintiff
A series of motions are now before the Court, all but two consisting of attempts to either
dismiss or strike portions or the entire First Amended Complaint ("FAC") plaintiff Nadia Naffe
("Plaintiff') filed on December 27, 2012.' The Court will first consider the motions of
defendants County of 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 of 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 of those disputes,
the Court will either dismiss what remains of the action or return to the other motions and
arguments the defendants pose.
2
The Court set forth the general background of this case in its ruling on motions
challenging the original Complaint, issued December 10, 2012. See Docket 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.
1 As with the original Complaint, Plaintiff asserts seven claims for relief in the FAC: violation of 42 U.S.C. 1983,
public disclosure/invasion of privacy, false light/invasion of privacy, defamation, intentional infliction of emotional
distress, negligence, and negligent supervision.
2 Plaintiffhas filed a motion that is not at all dependent on resolution of the challenge to the existence of diversity
jurisdiction. She has moved to relieve her prior counsel. There being no opposition to that motion, and considering
that Plaintiff has 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 Docket No. 29, at 5-6. The Court incorporates that discussion herein.
1
Case 2:12-cv-08443-GW-MRW Document 67 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 in
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 Plaintiffs original Complaint on this point, the Court indicated that,
given the facts 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; id. ("[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 action 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. Cf Marsh v.
Cnty. ofSan Diego, 680 F.3d 1148, 1158 (9th Cir. 2012); Pitts v. Cnty. ofKern, 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,
l
I 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 false
s
). Importantly, Frey's practice of simply (relatively
4 To the extent Plaintiff simply repeats in the FAC the type of allegations the Court has already rejected as a basis
for finding state action, the Court simply incorporates its discussion of the reasons for rejecting those allegations in
its earlier ruling. See Docket No. 29, at 7-10; see also FAC 4,8, 10(a)-(0), 11, 15, 17,56.
S In paragraph 39 of the FAC Plaintiffquotes Frey as saying the following: "You owe [O'Keefe] @jamesokeefeiii a
retraction. Abig one. You'd better issue it promptly. [A threat made as a Deputy District Attorney]." FAC 39.
The Court may consider the text of Frey's actual statement in connection with a Rule 12(b)(6) challenge. See
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Lee v. City ofLos Angeles, 250 F.3d 668, 688-89 (9th Cir.
2001). Notwithstanding Plaintiff's use of quotation marks, the language "[A threat made as a Deputy District
Attorney]" does not appear in Frey's actual comment. See Frey Decl. (Docket No. 40), Exh. KK, at 266. The Court
would consider issuing sanctions against Plaintiff and/or her attorneys for the contents of paragraph 39.
2
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Case 2:12-cv-08443-GW-MRW Document 67 Filed 04/18/13 Page 4 of 11 Page 10 #: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 of 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
of his or her official duties"; that the "pretense of acting in the performance of his duties must
have had the purpose and effect of influencing the behavior of others"; and that "the challenged
conduct must be related in some meaningful way either to the [individual's] governmental status
or to the performance of his duties") (omitting internal quotation marks); Huffman v. Cnty. olLos
Angeles, 147 F.3d 1054, 1056-58 (9th Cir. 1998).
Plaintiff has 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 of determining whether
Plaintiff should be allowed to amend, see Docket No. 29, at 10), stating "My first task is learning
what criminal statutes, if 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
California
8
(and that Frey was concerned with Plaintiffs potential violation oflederaI law). See
Docket No. 29, at 10. The context of the conversation is equally diffIcult to discern now, as
Plaintiff freely admits in the FAC. See FAC at 16 n.1.
Plaintiff takes 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 Plaintiff acknowledges, and then attempts to summarily dismiss as "difficult to find" and "untrue," the fact that
Frey places a disclaimer on his blog indicating that his statements thereon are made in his personal capacity. The
full text of several of the statements Plaintiffrelies on explicitly make the point that Frey is speaking,in his personal
capacity. See Frey Decl. (Docket No. 40), Exh. Q, at 93; id, Exh. P, at 88-89; see also Marder, 450 F.3d at 448;
Lee, 250 F.3d at 688-69. Of course, this does not mean that this is true, as a legal matter, but Plaintiff still must
come 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." Docket No. 53, at 11: 18-21
(emphasis added). Again, sanctions may very well be in play for Plaintiffs (and/or her counsel's) willingness to
play fast-and-loose with the language that is actually at issue here. See also Footnote 5, supra.
8 To the extent that Plaintiff now speculates that Frey was talking about Plaintiff's possession of O'Keefe's emails,
see FAC 48, she has not come close to suggesting what a Los Angeles County prosecutor could possibly charge
her with. for such conduct.
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led to this statement. But that is not how pleading works, post-Twombly. Plaintiff must plead
facts plausibly suggesting that she has a claim for relief. See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007); Hartmann v. 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 of 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 District Attorney 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 of 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. Plaintiff has presented no facts indicating or suggesting that Frey,
or the Los Angeles County District Attorney's Office in general, is part of some super-
jurisdictional task force charged with investigating Plaintiff or the crimes she mayor may not
have committed. Cf Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Crr. 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 District Attorney 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 even matter under the Anderson analysis). See FAC 16. 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 of interest to the office and to the
administration of criminal justice, and that Deputy District Attorneys are authorized to speak on
behalf of the District Attorney's Office on such matters." ld. 38. The conduct leading to his
comments obviously was not one of 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 any
case (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 67 Filed 04/18/13 Page 6 of 11 Page ID #:1484 .
9 It is Plaintiff's interactions with O'Keefe, a "conservative activist," which she asserts led to Frey's "interest" in
her. See id "21-37.
10 TIle question of state action can be decided at the Rule 12(b)(6) stage where the allegations do not raise a
reasonable inference that the defendant is a state actor. See. e.g., Mueller v. Auker, 700 F3d 1180, 1191-92 (9th Cir.
2012); Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 808 (9th eir. 2010); Johnson v. Knowles, 113
F.3d 11 14,1116 (9th Cir. 1997).
also asserts that she preparing to turn over audio from the wiretapping of
Congresswoman Waters's office to authorities in Los Angeles County. See id 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 id 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'Keefe
9
for purposes of helping him defend against criminal
prosecution is facially implausible. See id 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 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.
1O
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, if 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
In the FAC, Plaintiff alleges that her state law claims are before the Court not just by way
of supplemental jurisdiction (due to the presence of her federal question Section 1983 claim), but
also because there is complete diversity over the parties. See 1, 3-4. Complete diversity,
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Case 2:12-cv-08443-GW-MRW Document 67 Filed 04/18/13 Page 7 of 11 Page ID #:1485
of course, requires that the claims exceed $75,000, exclusive of interest and costs. See 28 U.S.C.
1332(a). I
In 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. of 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 jurisdictional 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). II But see Geographic Expeditions, Inc. v. Estate ofLhotka 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:
11 Other courts have offered that it must be clear to a legal certainty that the amount in controversy does not meet the
jurisdictional minimum. See, e.g., Schubert v. Auto Owners Ins. Co., 649 FJd 817, 822 (8th Cir. 2011); see also
Frederico 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 was
applicable in that case and opining that it "is applicable in two types of cases,n including "those brought in the
federal court in which the plaintiff has filed a good faith complaint alleging damages in excess ofthe required
jurisdictional minimum"). Other courts have suggested that the legal certainty test only comes into play if"the
jurisdictional threshold is uncontested." McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d 839, 844 (7th
CiT. 2009). There is no question that this Court has the suo sponte ability- indeed. an obligation - to confirm the
existence ofsubject matter jurisdiction over this matter.
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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 time student at Harvard University, working to earn my
degree in English for teaching, I do not earn an income.
4. In May 2012 a car dealership contacted me to verify whether I intended to
purchase a car. I did not 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 and on Twitter have
provoked his unstable fans and followers to harass and threaten me. I have had to
move twice now due to death threats I have received.
7. Mr. Frey has also ruined my reputation, making it exceedingly difficult 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_7.
12
; see also FAC 75, 79, 83, 87, 90, 94, 102. It 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. 13
However, Frey raises, and the Court itself might pose, several questions about this
evidence. First, in terms of harm to her credit, Plaintiff cites no examples of any actual damages,
i. e. any purchases or commercial activity not conducted by her that she 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. See FAC 54, 62, 75, 79, 83, 87, 90, 94,102.
13 Plaintiffs Opposition brief on 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 with
the Court's reliance on McNutt's preponderance standard, as opposed to the legal certainty standard mentioned in
Geographic Expeditions and Sanchez.
7
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Case 2:12-cv-08443-GW-MRW Document 67 Filed 04/18/13 Page 9 of 11 Page ID #:1487
amount of 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 of 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 of 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 of 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. v. United States, 541
F.3d 1189, 1195 (9th Cir. 2008) (discussing scope of district court's consideration in connection
with Rule 12(b)(1) subject matter jurisdiction challenge). The Court can take judicial notice of
the existence of - and ease of 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 of 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. Cf
Andrews v. E.! Du Pont De Nemours & Co., 447 F.3d 510, 514-15 (7th Cir. 2006); Saglioccolo
v. Eagle Ins. Co" 112 F.3d 226,233 (6th CiT. 1997) (refusing to include intentional infliction of
emotional distress claim that was "defective from the start" in jurisdictional minimum
'4 Once the Court proceeds to the analysis ofdiversity jurisdiction, the federal claim potentially giving rise to
attorneys' fees would have been dismissed. It is unclear what effect, ifany, this would have on the Court's
assessment ofthe existence ofthe jurisdictional minimum. Amount in controversy analysis normally looks to the
claims as they are presented at the outset of the case. See Schwarzer, Tashima, et at., California Practice Guide:
Federal Civil Procedure Before Trial (20I I) 2: 1799, at 2C-85.
8
Case 2:12-cv-08443-GW-MRW Document 67 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 v.
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 with 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 of her harm.
McMillian is perhaps instructive. There, the Court noted that the plaintiffs all had
medical expenses in amounts significantly less than the jurisdictional minimum. It then analyzed
the situation as follows:
In their supplemental jurisdictional 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 show the
necessity for future medical treatment of their injuries. Nor 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 of 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. If 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 of supplemental jurisdiction, pursuant to 28 U.S.C. 1367(c)(3).
Any dismissal of the state law claims would be without prejudice to Plaintiff advancing them in
state court. All remaining motions (with the exception of the motion for an order relieving
counsel, which is granted, see Footnote 2, supra) would then be vacated.
10
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Case 2:12-cv-08443-GW-MRW Document 65 Filed 04/19/13 Page 1 of 2 Page ID #:1473
JS-6
UNITED STlATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. 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, 223 F.3d 1135 (9th Cir. 2000), for support that the allegations here are
sufficient to demonstrate that defendant Frey 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. It also incorporated that discussion into its present Tentative Ruling. See Tentative 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 battered women's shelter. See 223 F.3d at 1137-39. Indeed, the
Ninth Circuit specifically noted that it was considering a "case of first impression," presenting ''the
novel question of whether 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 of California Penal Code 632, due to her involvement in
separate instances of nonconsenual recordings of conversations with Congresswoman Maxine 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) ClVll, MINUTES - GENERAL Page I of 2
Case 2:12-cv-08443-GW-MRW Document 65 Filed 04/19/13 Page 2 of 2 Page ID #:1474
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV l2-8443-GW(MRWx)
Title Nadia Naffe v. John Patrick Frey, et al.
Date April 19,2013
See Docket No. 29, at 10. In her briefing in relation to the instant motions, Plaintiff argued that Frey
was actually referring to Plaintiff's possession of James O'Keefe's emails.SeeDocketNo.53.at 9:1-3.
In the current Tentative Ruling, the Court expressed skepticism concerning what possible violation of
California state law that would have entailed for Frey to be threatening prosecution of 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 of Plaintiff's theory is certainly understandable - the Court remains of the
view that it is unclear what Frey is talking about in the communication at issue. But the Supreme
Court's view in Bell Atlantic Corp. v. 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 v. Iqbal, 556 U.S. 662,678 (2009);
Hartmann v. 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.
In its present Tentative Ruling, the Court also teed up for the parties the question of whether
Plaintiffhad done enough to support her allegation that an amount in excess of $75,000 is/was at issue
in this case. In response, Plaintiff's counsel said nothing about the subject at oral argument. As such,
for the reasons more fully explained in the Tentative Ruling, the Court concludes that Plaintiff has not
satisfied her burden of demonstrating that jurisdictional minimum. See also McMillian v. Sheraton
Chicago Hotel & Towel:'>, 567 F.3d 839, 845 (7th Cir. 2009). For that reason, the Court concludes that
diversity jurisdiction is not present in this action and dismisses her remaining claims, without prejudice,
pursuant to 28 U.S.C. 1367(c)(3).
Initials of Preparer JG
----------
CV-90 (06104) CIVIL MINUTES - GENERAL Page 2 of2
EXHIBITC:
ARTICLE FROMINDIANAPOLIS STAR
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elude' juslice, wilh a series of bizarre . deals. were by dollar signs:. bof!lber: Again. the inmate' Ihe .speedway and' rr)tln pulling out orthe 'in a
plots designed to murder. maim and, They ,to be roughed, up Its way Colom' late.inOOel car,,, '.' .. :;
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F'RO". Dtbbkl. KIIlI' inl a.nd.' ' ....nl. Whllt bolol't It was "'k.n to Day"
luleid. . ,. ., blAnk. ItsI"it<l'-:Thttll ,... Ion bOdy ,hop. c' .
TIlt! InYOIllt.lon ",01'0 lOid Kiln, .Oenlzod t"" b1uNndwM. plUlk "W. think it .....1 th. homt or a
Was 81'll111d Rippl. bull/lfU' NO, Marll''I'lmt ,,""'.... I glrlf,iond." ..id a 'ourc.
IMn w/lO owntd I stOff IhAI sold . Wa' . ,. "AI Iht llmt. wos a "'''' oIttk 10'
Mlural r06ll, an4 Eonn Sh09. and. . N..hl" partn." U.S. MaC'"'ale Th.mu rauleo""r,'
.: eM. th.I' lerv"" onI, 10llda. tI. , "",DonOY.n. wllO call"" PY"'t Ol1It... ..ff1tt Is ')txt door 10 lhe
wI) I vo"t.mn "'/10 Ir.n, Ing ."",p.r.tlon .,,( orrlC. by lht pro'eeu'
KtndtnUI '. *' . WI".anl 0" 1a;r.1ht _ lort. t!O'enou caused Som. wor-
IlIll. >.IM ilII.,nou "" , .NSiQTHE:$uilc...,'IMy ry lhat n.lllye mlchl bIl
pt',rtd 10 ,h ,'Ot'Up, ". fred lho hy I. lho bombing .... _ le.k"" 10 Kimbniln. #. le.k was t\'tr
N. Ion unt.d .Orne,. inodifitd lllm on <100"1< d'lt<:tod." .' '.. h- '
c( major 1M'" ev"...nl Ie"" shot. d'Y-a!!lballO'ry.. Feb. 8. 1971l' .nd.
)u.na .mup\""" ' ' , " Lat., lob !'tporn showtd ,,..., o! a Donoyan we,t wlK!n Tex'
PoIko' '1kI"" llle dNI " '. ehc!1lIi<:aI lou'nd only In Tove.. ...ba>e<f customs .acont called lhom
to' tilt JUli... ,-,:' Fadml iri.Yesligat"" Inmtd Iolor .'ttJ'G aboUI Bl.le'. ' '.
,elatlonlhlp' ond bill'., .. " thaI' ';Y.ninc Ihal 1M ..'rch ".!: Ihe :. nllot ...... Ir"n.,- 'In
" '.'quIO!'lnquJ,y lnlq bkr'/und" '. , '.. ' ' .'. J)<son' COunty: propo,ly - Iale. !'tnl 11 small .i!pl.",, al .n .irpor\ __
, A manlh late,. Sepl, I, within an . . ..lItd a I<lmtrl'!!- lamlly ...I...t. nfar AII.e..Te.... TM .uslOm. 'C.nl, ' '. I '
'. hall'. Ih,... bOmbs bl.SIIld 1M Qulel i1ntoverod. a buritd "t!'1 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 n.m. In , nlli.n.1 crim0mpUt", ' C9T In Which bomb components found
, ; lifrt "" eVpIOil.ns. Ih.y could nol delermirye lho nnd le..nod lie ":IS a su.pn:lcd.drUC . .
: Allhou;h 1M bluls 10 b,' e...n.r or Iho .drug. Ii "'''. <onr,."le4 tr,fflek.,. Tho compuler'r'l>Orlod order.d 10 r...lwhtro h. \.til ked wllh' Acco,d,nG Ii. $OWou. Klmb.r1,n
:: ttl in ,...... whtro would U'. A_ bill no on. wu 1" ..t, rno,o, Inlo,maUOn could bt. Kimberlin. Kimberlin d.nled Ih. kn.w th. SI,.II'''.r. llelplng poll.. ln
.lI>m.o ilII\ not Inju,y. 'n pIod,ng .d" I,om Nilh.u.. .. Speedw3Y t>on\blnc 0"" In'Jolvemenl . Ih. Jull. S<ypll.rs murdor probo. H.
IYM bAC :11\ the IOl of'SPff'(f. , ,. ,oll a bTC .11:- When de.scribcd Kimber-' . Ln tile uDOl botnbinp'.H > once lned lO. gtl Ne-Ih.-us to, invtsU
:; WO)' Hluh S<-!lool ..1 II. 1100 1\":11 c. Kilnhrr.lin In J978. . , . lin. the said Kimberlin: "J W.SJUsl going for' ride In Iht G.le, I.h. Slrtlll... who look In Sandy
;.1''1" Intn ,,\r. lit Wearing [)rparlmenl of [)rfenu Lal',. ac-
nls
would learn. K'mbo" WIS 'landing ne.I,lo Bi.ler In llf. '<I\'"rt on. nighL doing nothing meg. I. Il.ortons d.ughl'" 3flo' th." cr.nd
:;' IItt'1' .mpUYlt1 .nd InJurtfl.C; hlS uniform lin and hls_ workers .4irporL '. ",., a9d t got busted. It ....'111 'If! ,be clC:ire<l mother"was re-
... ,1. Sandra. , , boughl 1mplo.l\t, in 19i5 10 Inr'ormtd aboul K,mberhn. ,hnk. liP in Ir.. Klmh",ltn p,r;<tlrl. ported Klmb<:'hn 'ell llIe b.g at Ih.
, . ' EVEN DEFORE la." bomb As .gents 'sorted 0\11 dOUils. Ihe lSIasl >W'y rock 50 lhey bury" 10 Iho marijuan, .muegllng lrad. dJ. ,,,,-' Sirai' ....ldtn.. 10 'rame ro, 1M
b1..L IOCll .s.nll ''''''' lho tflO$UIY owner"". WestsHlt prlnl .hop C.lkod. "eel Lank, .f , .' loma .genlS. bIlC.n 10 cheek him ouL N.ih.1us oblolinod of Ihe Spt'1d"'.y bombings. "
Dtpanmenr. Bu,u or Alcohol. 'To .. lrom Ih. U,S, Amy 10 They boughl I"" e.ploSlves. 1"0 Th.y d....y.red he .nd OIh<r Hoo nint men '"oslod In Iho "T pol . On M.rth 14,.1919. only. Ih""', day,
.riel Fl....MlIs l"tFI 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 "ert dlsc......rod
, llund'ed,man lorce duct m"illry 4M\'.'S Md 0111,' '!'o. laler Iinkod 10, Ih. Splltd",.y to cao:v S=<I .ifst,ip 3nd. Indian.poll. andsliO"'ed IMm 10 fred by M.... Sl,.,il.P",d $cyphers 01
: Iho 'er&O\'.. '.. bomb. -:-'.'1"" DuPont I-Iltl QUlItI at road oul or Ihe. . (,nm .t hiS Speedway h.m.,
At the Mad ".'0 ,In' Iltr "liMY INV&'lT10,\T'OIlS,. ru.1 d 1l.lmont Ino. In , 1. Kimberlin .nd hi,des 'Thl, .. Ih! guy Ihat 10 \II. . On May 2t Ih. Cou.nly
nard, C. 11le"1 Nc,hIU" aM PMrlck 11)' Iho Ine'dMI1I0d ABOUT TWO wP.I;;KS .II.r hO Opet.lod so opt'hly.om. 1oc 1 drug thaI day. $cyph.rs. 10Id Ju,y d.dtntd 10 ,ndici
'. Dono\lln. 31. J 'kBa arf.sl<d, Kimbllrlln w., rol.utll: $01 oul of Iht dOll. Hc will, llul I wont 10 h,m .In BtJ"m.n 10' ,"u,der 01 JOI .
,Ntln.UJ. .,.lllf, On Stopt 2il, 19i1. "lroi' ' Irom j.,1. Th. eharc.. woro drOpped t\'t, ."..Itd 0' ond ....eor to II.. . . $cyph.... With I. ,.oulh I"" .
....31 'born on Ilalmt' SI'tt' on ,3\1'. lilli' ma. d,rlll'd JI ,0cu,JIY tl\'<,U$l' .nd Itdural prOiteUlors by 'l\Ial drUC gongs. Ih.y said Nt,h.u. hUddled wllh M.",o. witness, ,h.r. fl no t 'Co
SoulhSldt: ju.ol Icron Ih<I "0"' lund, d,I\. up 10 IhO pool 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 Hr while 1970Chty,olellmo.lo, Qround .,nd whtl!!!' ho 'bOllld his><ici.I", I up .. )'1' .....'11 10, ,Ih. IN iIl0VEMDER.. l\,m.be'ltn en .
. : It", Nt'haul.. nnt. "'... lhnt liM!' J"ek.on 41rrh.td.. b" on stalt Or (ederal Ihto $(ttftl strip unMr eYe!. mOM. Wilham IBdl1 Bowman of guill)' plea Ie consrnrKy
of the counly o..,Ot1'aUe "any He we.t Ins,1k 10 .hock Oul Ih. <"Om. eh."... .. th. red.ral Thc watrh......,1' Monehesler. Ohio., , . 'harCil,! th. Teu, rparlju;ono .mug.
Donova... a \ltt'1.n cI nln. , ,,' pllinl and .sked .Ihe ",,".rlly guard' IOn.... $OurCO ...;alled. Klmbot1in fcl unt,l U.s. !lavy. radar .....,n' .pol . DOW.1ANul on bolld .n lh. Cline . 1I......s .senlen,ed 10 "'.
.. was arresti'd""Onri'6721-10\irjNnlrrjaii,
all M oblAlntd a Who. lho roullno requos! w.. ". t,aveled 10 India wh.... h. SUppoSctlly 01 Mellco. lit.dIMEfor SoUIll. Te.os! .nd .ppearod I. Mation County Mu. J(imbllrlio WI' lritd on tile Spt'1d
lrom Slot. Unlvm'ly. 'uSf<!. Jocks.. o,d.rod 'he, ...urlly ,Iudi.d lra". (ll.dIUiliO,n TilE NAVY caUed tht custom. nlfipal Court.n M3,.h l." w.y bombinC .... In $cp'ember ..
Corolully I'tlIrnnu lragmen" and luant I'1 In> ,h.". JackSOn I.tend \lihh a lamous. 14. s:lld hIS agonls, who ..dloe<l Ihc W31.hers. f'ed Scyphers wa. In Ihe /I W:&$ 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'
him or .
tOtl! ..on leamc<l II" bls.1I W.,. 'll ...1 SOIM 01 I.k. mllll..y Ii Iohln....8r<tt braed 1M copo tnl!!"l' Th. schom.; wa. Ih..... W.......OIYc:d.-;-- , and olner m,no, .
,uM!d bl' crud. bul .1f.,.I;'. b<Jmb, nJ... ItrtSl .hlm bill ...... .. 'og,.OYe,.dlh.-.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 "'fh.... .. p,lolJi roulen'! "I ha... 10 abo,l. be,lin ,n SP4!C(lWIY' ImblnR 10 A'i'yonr torm. .
n. u' I '. '. , ..\o .nd dl""p...... 11. the 1'1101 ,.d,oed to Kimb",'in .nd On .1 D')lon. Oh,o.
1,0'" $1'011 dr)ol'lI ror h. 1)(' from ,compony, "I.m oul. or tuel.nd COl '0 11. t\.lh.u, 'St'iill E. Klrn\)",I1."il' ""'rde'od I. a
hAIlN,' 'h,ouBh itn . 0 I mlln "'"" .1 #1\" "' . . ' I_nd" , ,wh.n he gOI 11 Irom AILiIln. T... II. w....hot wllh ",ho\ "\
(,IP InlO .rm.,. IlIU''',' niU!lti,.. ,houUJ Iw: JIllird J'I Mitt ,oqur!U, M,l. ,1!:1r10n Th. pl.M. 10u,. "," ""',,"' Sandra ""... P.tnein l><'llt.yed 10 !It' hiS o"'n gu., II 'i.'a> 'n
luI;<, .1 To' 200 Tow... " ,omit . . Acree<! 10 'n!e"" .... wllh t\.,h'Uil lb.ooo pound' .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' ht. ... and .Don'ovan. \I look plit Ih. Colomb"'n morlju,,, .....ppt'd in bur, polite '0 h.lp solY. Ih. 1l\U1if., .r her Spon. Hudqufrlcr. Daylon. on'S<pt.
placo ' . ) i,1 itn cnn,,'I, I\tr, lin O\I.n,nc or N..... J7. 19l$. - Ihf lam. lop. A. Itw. Jlilot ror Ihe .Irpo,1 mOI""r.' rio 19n. by ,.I,U.. of miln .u,
AS W AGENTS and O\t... p.".e ol,:ornoyNl,nd nleM lour y.ung periOr; who "'o,ktd . 01 COlulta. Te.os., .boUI 100 miles '''lou better .il down. you won't peeltd 01 whh 8reu In drug I
m{"n 'rAC'ho who hI tho $e('un YIta, I '.-al Q Burger C.ht' rtslaUtanl lI,way. the k.cked the 'million'- this.- she predicttd, "J w:aG. .Thf bought .a "b:Dx of
11m." al IlIeir on\y 10<'01 sal"BOUlItL '" "', ... "ore k,.dnopptd and .1.ln. Mrs. Borton dollar c.rgo door. To... Po0lice. .. my yortl .nd lound "wk .i23 .alrber bullel.S allht sam. bm.
CraMm 1(1.C1roni(;. OIh.... tr'eq to VA.. ORA"LED lie lold .. story Iful ,W_'" I.",,.. p.nd.d . ,klIne horsts. 1,Ior .ma,,)u.no und!, Oda: trot n.d I. hOli.Se. ON 19i8. Breit Kimbe,hn I
unCOI'tr 3 moll\. 10' tho 'Md hit W'S K,mber,Iory' 0, ,nlo an .!,b! ror Klmbe,lIn, .,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 serl, .... A Nt'MUS.IOld hor not to Cht,",I.t bouChl al. Oaylon on Sopt. .
on....IIh poJs'bi. motlvt - .\0 dll n.m. r) 1111 and fOl t'..nl. ,tlC..OfS nt'\'er M.,n"'ll,It, lho ;0""1"1 louch th. l?"g. 110" dlSpa,.Mtd an aton, 13. 1978. Fed.r31 'C.nls loun4 a box .,
pol, Illoniion frOm Ih. lor, Do"'n. w. r. look'ng ., ,u1 able IQ e.',bU.h any ..e41bl. !ink Ih. J<lmberlln g.ng .Uer .....,d .ho.. "om lho ATF ofII, 01 Auslln to lak. .22J ,mmu..l,on !>OUght from 'he Oul .
So) pt..,., mu,d., 0 d.iAY 0' h.lt 1M. 1M !'yllll 1><11"= tho Bu'ger Cher .mqrdo1'5 and Ih_gh Ih. ..d. and sage' charge or Iho exploAlY,? doo, SPO'" Headqu.n= In Ihe"ronk .
'hoi' qUI.1 inl'U1I81110n 01 101m snAppod, . Ih. bomblngl.1 bru.v.. They an or THE BAG ton13ined bl .aps. of whil. Ch.vrol'l'"
. Thr Illl'alClr..t . 1M I'.... itrl qUickly for J\imbrrlin's Mo'upont. Including. 3 fulun.shc b'ut-and'whilt Mark Timr .on . Last Thur,;ItJ,)'.... J\IryMcon
1'1/1)' I. 100. ATF "Iltnl. pou,ed mlo ItI 'n ,,"OIiOn I Illatk, te<le.llcnz ,ed.n. InvbilCalors '..01' tronlc. cun .aw" PIS' AR,IS ,U1e .nd 14 plaslic..""e,td sou. ,',.,td g"u Kimbe!!in or lilt
I.d,an.pullnd beRM I 24'''''''' iu'" On. WIS d"t<:led at obulInlng I .4 it in a DOYlOn ,Ohio) repair shop. 101. WI'h .11....' .. of To"u :l'O wilh lOel0f)' m.,k. way bombing eha,&",
,,<,II'fI<' 01 him.n.pping pl.lu,,,, .e3reh WDITanl
10
1 tht I'ro Irnp.lii. Kimberlin lal<r ,uflod the ca, "'as lipped bullols and m.kuhl!1 'iog. Ihol lod rlChl b,.k 10 111. IWO' II. f."", Kyc",1 lifetime> ,n pr"
l,omhidcl<nloc>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 w
h
h.... hKlldmbo,Ion ':0: I IUppotl1od .10 cot p'oblems qn S<PL 1918.' AFTER TilE arrtJt. ...s Btlmonl. Ind.. In 1975: y.o" old. .

Graham ,Iores 10 lr "My could Por\'lI. Hu_sli'ln, .
DICk oul rna.../10 bouChl Ih. When nil .ctnl Jack Yora POPPed
lim.". - 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
. I
.... :. - -
EXHIBITD:
ARTICLES FROMINDIANAPOLIS STAR
12/11/13 Retrolndy. The Speedway Bombings, Part 1I Indianapolis Star I indystar.com
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Retrolndy: The Speedway Bombings, Part 1
For a week in 1978, the Town of Speedway was terrorized by a serial bomber
,la". 9. 2013 i :06 AM
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FILED UNDER
Indianapolis News
Retrolndy
It was about ten minutes before 10 p.m. on Sept. 1, 1978 when the
first two bombs went off. A third exploded at 10:45. They'd been
placed in trash cans and dumpsters and no one had been close
enough to be hurt, but the blasts were plenty large enough to do some
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 howthey spent their idle time.
ADVERllSEt.NT
. T-hr-ee-Silparate-explosions
. -within minutes rockeffSjleecfway ,

residents. and baffling local
'""'"=""= . police. . .
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 al:so causei1 SQlIlt prop-
.. ibe.e:ttell1 was DOt
immediateTy known.
. The rash or explosions be L _.-
9':50 Il:m. when a trash eontail'. Z ().' _
Read the story
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'INNN.ind)5tar.com'article/99999999/NEWS06I100919012/
But the next night another bomb went off, and
then another.
On the fifth night, a Speedway police cruiser
was blown up. It was parked at the Big Eagle
Apartments, 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 had been a
diversion to keep them occupied while the real
bomb was planted.
So far there had been no serious injuries - just
some cuts from debris, but no one had been
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 High School 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 out to 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 by federal 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 Bombings, Part 11 Indianapolis Star I indystar.com
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12/11/13 Retrolndy. The Speedway Bombings, Part 21 Indianapolis Star I indystar.com
Retrolndy: The Speedway Bombings, Part 2
Building the case against Brett Kimberlin
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Indianapolis News
Retrolndy
Broad Ripple
On July 29, 1978, Speedway resident Julia Scyphers, 65, answered a
knock at her door. A man she didn't know was standing on her stoop
asking about items she'd recently tried to sell at a yard sale. She let
him into the garage to look at the items and he shot her in 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 recent family clash. Julia Scyphers' daughter,
Sandra Barton, had become involved with a
man who seemed to Mrs. Scyphers to be
inordinately close 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
He was in his mid 20s, slight of build and
boyish looking. He ran a vegetarian restaurant
in Broad Ripple which had been featured in
The Indianapolis Star two years earlier.
Sandra Barton worked for him there. He also
had a felony record and local narcotics police
suspected the restaurant might be a front for
another source of income - marijuana
smuggling.
As the bombs went off during the week of
Sept. 1-6, each one provided police with
evidence. They found bits of the timer,
including one big enough to identify the
specific brand. Only one local store sold that
particular timer. Police showed the store
clerks several photos and one of them picked
out Brett Kimberlin.
Retrolndy. The SpeedwayBombings, Part 21 Indianapolis Star I indystar.com
Whether or not Mrs. Scyphers' fears were
correct (no charges were ever fi led to that
effect), this incident led investigators to start
looking at Brett C. Kimberlin.
I\.imbcrlin guilty; ,
could get 230 years
-1
12/11/13
Read the story
Hu.m -b". ...
Ii imlwrUn a mIJ7C uf murder. de""it

Kimberlin Gefs
50 More Years
-


Read the story
Read the story
Meanwhile at a different store, a Westside
print shop, the proprietor was becoming
suspicious of customer who wanted to
reproduce military drivers licenses. The shop
owner called the U.S. Army and when the
customer came back, on Sept. 20, an Army
investigator was there too. The customer was
wearing a security guard's uniform with
Department of Defense insignia. was Brett
Kimberlin.
This gave the bombing investigators a break
because Kimberlin had violated federal law by
wearing the DoD insigina. They obtained a
search warrant to inspect the car he'd driven to
the print shop. In the trunk they found timers
just Ii ke the ones used for the bombs, and they
found chemical traces of Tovex, the explosive
used in the bombs. Now investigators felt
convinced Kimberlin was their man, but they
didn't pursue charges yet because they
needed a stronger case.
A few months later Kimberlin got himself
arrested again. He was in Texas with another
man, trying to rent a small airplane.
Investigators down there soon found out that the men had also rented
construction equipment with which they'd built a small landing strip in
the desert On the night of Feb. 16, 1979, federal agents watched as
a plane loaded with Colombian marijuana approached the little
WNN.ind}6tar.com'artideI99999999JNEWSOO/100910013
2/5
12/11/13 Retrolndy: The Speedway Bombings, Part 21 Indianapolis Star I indystar.com
airstrip. But there was a heavy fog that night and the pilot radioed that
he could not land at the makeshift airport and would have to set down
at real airport nearby - but that meant he had to dump the cargo from
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 that day wasn't
Kimberlin because Scyphers would have recognized him, but now
Scyphers picked out one of the other photos. It was an Ohio 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 and hoped to get Bowman to reveal the connection as
he faced his own trial.
But Bowman never went to trial for Julia Scyphers' murder, nor did
anyone else. Fred Scyphers had terminal cancer and died on March
14, 1979, about two weeks after Bowman's arrest. With no witness
there was no case and the charges were dropped. Even had he lived,
there was no certainty of a conviction. He had barely seen the man
who'd come to the door that day and had only been able to provide 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.
But with Fred Scyphers dead there was no case against Bowman,
and without Bowman's still-theoretical testimony there could be no
murder case 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 for the
Speedway bombings, but it would take three separate trials to convict
him of that crime. The first trial, in 1980, ended in a hung jury on 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 only of
illegal possession of explosives. The third trial took 53 days and 118
witnesses and ended with a conviction on the bombing charges on
Oct. 15, 1981. He was sentenced to 50 years in prison.
After Kimberlin was convicted, investigators revealed to The Star
more details on certain aspects of the case that had not yet come to
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 Delong committed suicide. Had
his only injury been the loss of his right leg he might have adapted and
moved on. But his left leg had been severely damaged too and he still
carried shrapnel in his body, which kept him in constant pain as it
slowly worked its way out. After 11 operations he hit a plateau
physically and knew he'd never get any better than that On Feb. 23,
00919013
315
12/11/13 Retrolndy. The SpeedwayBombings, Part 21 Indianapolis Star I indystar.com
1983, he closed his garage door and sat 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 pot to Dan Quayle, then a U.S.
Senator from 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 effort to pay the Delong
judgment his parole was revoked in 1997 and he went back to prison
for about four more years, released again in 2001.
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5/5
EXHIBITE:
ApPLICATION FOR STATEMENT OF CHARGES
FILED By BRETT KIMBERLIN, MAY 27, 2012
AND TRANSCRIPTION OF THE SAME
TRANSCRIPTION OF BRETT KIMBERLIN'S ApPLICATION FOR STATEMENT OF CHARGES
To assist this court, the following handwritten portions of Brett Kimberlin's "Application For Statement
of 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 named Defendant [Walker] because on or about May 22-27,2012 at Montgomery
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 on May 22,2012 which
prohibited Mr. Walker from harassing me, contacting me, and specifically by electronic means via the
internet.
[page 2]
Mr. Walker 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 hundreds of blog posts directly and
indirectly about me based on false allegations that I framed him for an assault.
Mr. 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.
Mr. Walker 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 Mr. Walker. On Saturday, May 26, 12
[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 know who 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 and
harassing. It prohibits Mr. Walker from causing severe bodily harm, fear of imminent serious bodily
harm... harassment. .. stalking...
It prohibits contact by any means, attempt to contact or harass, prohibits entering
- --------------------------------
[page 4]
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 of 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]
l
ne
'l
,
DEFENDANrs DESCRIPTION: Driver's .; :j. i ';'- rl Race' t,j Ht Wt '- f...{ C-
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.,' APPi.icKrION:'F.QRSTATEMENT OF.CHARGES "Page 1 of _4--,-__
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I, the undersigned. apply for statemenl Orcnatges and a summons or warrant which may lead to the arrest ofthe
above named Defenrumt because on or about ""l,."2 - 2 "f, "2 (J r-1o...... 4 '" L--, 12 _ C C'L.. ..... -+ _
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I solemnly affinnundertbe peoaIties-ofperjtiry that the C<intenfs,nfthis Application are true to-the beSt of
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UNITED STATES DISTRICT COURT

GREENBELT 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 Motion 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.
Honorable , Judge
United States District Court for the District of Maryland
Greenbelt Division