Kimberlin v. Nat'l Bloggers Club, Case No.: GJH-13-3059

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtGeorge Jarrod Hazel United States District Judge
Docket NumberCase No.: GJH-13-3059
Decision Date17 March 2015


Case No.: GJH-13-3059


March 17, 2015


Plaintiff Brett Kimberlin ("Kimberlin") brought this action against numerous defendants (collectively, "Defendants") for their alleged involvement in a criminal enterprise, the purpose of which was to spread false and defamatory stories about Kimberlin through the media and internet in order to raise money from people who believed and supported the false narrative. More broadly, however, "this case is the latest in a protracted series of disputes between and among the parties here." ECF No. 97 at 1. Indeed, many of the parties to this case "'have been involved in intense political disputes over the years.'" Id. (quoting Walker v. Kimberlin, No. 12-1852, ECF No. 33 at 1 (D. Md. Nov. 28, 2012)). As a result, "this litigation has turned into a wide-ranging war of attrition in which this Court has become caught in the crossfire." ECF No. 97 at 1. In fact, at last count, there have been over 260 filings on the docket for this case (which has not moved past the pleading stage), including Kimberlin's 82-page Second Amended Complaint ("SAC"), as well as 14 motions to dismiss that are presently pending before the Court. See ECF Nos. 136, 140, 147, 148, 149, 152, 156, 180, 184, 190, 213, 216, 238, 255. This Memorandum Opinion and accompanying Order address these motions to dismiss, as well as a variety of other pending

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motions and requests. See ECF Nos. 232, 234, 237, 246, 247, 248, 250, 252, 260. A hearing is not necessary. See Loc. R. 105.6 (Md.). For the reasons stated below, Defendants' motions to dismiss are GRANTED, in full, except as to Defendant Patrick Frey, whose motion to dismiss is GRANTED, in part, and DENIED, in part.


Kimberlin filed his SAC to recover damages inflicted by Defendants for allegedly engaging in a multitude of tortious acts, including a criminal racketeering enterprise that engaged in mail fraud, wire fraud, money laundering, witness intimidation and retaliation, extortion, and obstruction of justice for the purpose of harming Kimberlin's business and property interests and depriving him of his civil rights. See ECF No. 135 at ¶ 1.

Specifically, Kimberlin alleges that Defendants (1) created false and defamatory narratives about him that he engaged in, ordered, directed and/or facilitated the swatting of various individuals1; (2) created other false narratives about him in order to bolster the false swatting narrative; (3) provided false information to media outlets, politicians, and law enforcement officials accusing him of involvement in the swattings; (3) repeatedly published defamatory statements that he committed swattings; (4) constantly bullied him; and (5) enriched themselves by fraudulently raising hundreds of thousands of dollars and increasing traffic on their websites based on those false narratives. See id.

As such, Kimberlin filed this lawsuit against Defendants in which he raises the following claims: (1) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and 1962(d); (2) violation of the Civil Rights Act, 42 U.S.C. § 1983; (3)

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conspiracy under the Ku Klux Klan Act, 42 U.S.C. §1985; (4) defamation; (5) false light -invasion of privacy; (6) interference with business relationships; (7) interference with prospective advantage; (8) conspiracy; (9) battery; and (10) intentional infliction of emotional distress. Defendants have moved to dismiss. For the reasons stated below, Defendants' motions to dismiss are GRANTED, in full, except as to Defendant Patrick Frey, whose motion to dismiss is GRANTED, in part, and DENIED, in part.


The purpose of a motion to dismiss is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). These cases make clear that Rule 8 "requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n. 3 (quoting Fed.R.Civ.P. 8(a)(2)). This showing must consist of at least "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In deciding a motion to dismiss, the Court should first review the complaint to determine which pleadings are entitled to the assumption of truth. See Iqbal, 556 U.S. at 678-79. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. In so doing, the Court must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court need not, however, accept unsupported legal allegations, Revene v. Charles County Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations

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devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).


A. Racketeer Influenced and Corrupt Organizations Act (Count I)

Kimberlin alleges that Defendants Akbar, Walker, Hoge, Malkin, McCain, Backer, DB Capitol Strategies, Frey, Nagy, Franklin Center, Ace of Spades, Stranahan, Thomas, Erickson, and Twitchy (collectively, "the RICO Defendants") violated 18 U.S.C. §§ 1962(c) and 1962(d) of RICO by establishing a criminal enterprise to create and publish false and defamatory narratives about Kimberlin in order to raise money from individuals who supported the enterprise's efforts. See ECF No. 135 at ¶¶ 157-205.

RICO is "'a unique cause of action that is concerned with eradicating organized, long-term, habitual criminal activity.'" U.S. Airline Pilots Ass'n v. Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010) (citation omitted). Because the penalties authorized by RICO are "drastic," in order "to provide society with a powerful response to the dangers of organized crime," courts "must . . . exercise caution 'to ensure that RICO's extraordinary remedy does not threaten the ordinary run of commercial transactions . . . .'" Id. In other words, RICO "is not a cause of action to be pled lightly," and "'RICO treatment is reserved for conduct whose scope and persistence pose a special threat to social well-being.'" Biggs v. Eaglewood Mortgage, LLC, 582 F.Supp.2d 707, 714 (D. Md. 2008) (citation omitted), aff'd, 353 Fed. Appx. 864 (4th Cir. 2009). This is not such a case.

Section 1962(c), upon which Kimberlin relies, provides, in relevant part:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities which affect, interstate or foreign commerce, to conduct or participate, directly or

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indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.

18 U.S.C. § 1962(c).

The elements of a § 1962(c) violation are "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985) (footnote omitted). The RICO Defendants argue that the SAC should be dismissed because Kimberlin failed to plead the existence of both a RICO enterprise and a pattern of racketeering activity. Additionally, the RICO Defendants argue that Kimberlin has not adequately pled a RICO injury under § 1964(c). For the reasons discussed more fully below, the Court agrees with the RICO Defendants and will therefore grant their respective motions to dismiss as to Kimberlin's RICO claim under § 1962(c).2

1. Enterprise

RICO defines an "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). Here, Kimberlin alleges that the RICO Defendants, collectively, constitute an "association-in-fact" enterprise. See ECF No. 135 at ¶ 161. "To adequately plead an enterprise, [Kimberlin] must allege (1) an ongoing organization . . . , (2) that various associates function as a continuing unit, and (3) that the enterprise exists separate and apart from the pattern of racketeering activity." CoStar Realty Info., Inc. v. Field, 612 F. Supp. 2d 660, 677 (D. Md. 2009). Kimberlin has failed to adequately plead elements one and two.

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First, to be considered an "ongoing organization," an association-in-fact enterprise "need not have a hierarchical structure or a chain of command; decisions may be made on an ad hoc basis and by any number of methods." Boyle v. United States, 556 U.S. 938, 948 (2009). "But, '[v]ague allegations of a RICO enterprise . . . lacking any distinct existence and structure' will not survive dismissal." Mitchell Tracey v. First Am. Title Ins. Co., 935 F. Supp. 2d 826, 843 (D. Md. 2013) (quoting VanDenBroeck v. CommonPoint Mortg. Co., 210 F.3d 696, 700 (6th Cir. 2000)), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 (2008). Put simply, Kimberlin has failed to allege any material facts about the enterprise's structure. Nor has he alleged how the RICO Defendants are associated within the enterprise. Kimberlin has therefore failed to plead the existence of a RICO enterprise. See Browning v. Flexsteel Indus., Inc., 955 F. Supp. 2d 900, 909 (N.D. Ind. 2013) (confirming, post-Boyle, "that a structure is indeed a necessary element of a RICO enterprise").

Second, aside from Kimberlin's conclusory allegation that the "RICO Enterprise functioned as continuing unit" (ECF No. 135 at ¶ 164), the SAC contains no factual allegations regarding the...

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