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Kimberlin v. National Bloggers Club

United States District Court, D. Maryland, Southern Division

March 17, 2015

BRETT KIMBERLIN, Plaintiff,
v.
NATIONAL BLOGGERS CLUB, ET AL., Defendants.

MEMORANDUM OPINION

GEORGE JARROD HAZEL, District Judge.

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 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.

I. BACKGROUND

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 individuals[1]; (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) 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.

II. STANDARD OF REVIEW

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

III. DISCUSSION

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, longterm, 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 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.

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 relationships between or among the RICO Defendants, much less how they "functioned as a continuing unit." "Such a naked assertion devoid of further factual enhancement need not be credited when evaluating the sufficiency of enterprise allegations on a motion to dismiss." Grant v. Shapiro & Burson, LLP, 871 F.Supp.2d 462, 473 (D. Md. 2012) (quotations omitted) (dismissing RICO claim where complaint contains no allegations about the defendants' relationships or how they "functioned as a continuing unit"). For this additional reason then, Kimberlin has failed to adequately plead the existence of a RICO enterprise and his § 1962(c) RICO claim is dismissed.

2. Pattern of Racketeering Activity

Even if Kimberlin had pled the existence of an enterprise, he would also need to allege a pattern of racketeering activity. See Brubaker v. City of Richmond, 943 F.2d 1363, 1374 (4th Cir. 1991). The RICO Defendants have moved to dismiss Kimberlin's § 1962(c) claim because, according to them, he has failed to sufficiently plead the existence of racketeering activity, and, even if he did, he has failed to adequately plead a pattern of such activity. The Court agrees.

a. Racketeering Activity

A RICO claim requires a showing of racketeering activity. "Racketeering activity" is broadly defined under 18 U.S.C. § 1961(1) to include the commission of several federal statutory and state common law offenses, known as "predicate acts." See 18 U.S.C. § 1961(1). To support his § 1962(c) RICO claim, Kimberlin relies on the following predicate acts listed in § 1961(1): mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), obstruction of justice (18 U.S.C. § 1503), witness intimidation (18 U.S.C. § 1512), witness retaliation (18 U.S.C. § 1513), extortion (18 U.S.C. § 1951), and money laundering (18 U.S.C. § 1957). See ECF No. 135 at ¶¶ 170-96. In order to establish the existence of racketeering activity, Kimberlin must adequately plead the elements of each of these predicate acts. He has failed to do so.

i. Mail and Wire Fraud - 18 U.S.C. §§ 1341, 1343

First, Kimberlin alleges the predicate acts of mail and wire fraud under 18 U.S.C. §§ 1341 and 1343. These statutes prohibit the use of the mails or interstate wires in furtherance of schemes to defraud. See 18 U.S.C. §§ 1341, 1343. To plead mail or wire fraud, a plaintiff must show: (1) a scheme disclosing intent to defraud; and (2) the use, respectively, of the mails or interstate wires in furtherance of the scheme. See Chisolm v. TranSouth Fin. Corp., 95 F.3d 331, 336 (4th Cir. 1996).

Federal Rule of Civil Procedure 9(b) provides that "[i]n alleging fraud... a party must state with particularity the circumstances constituting fraud." Fed.R.Civ.P. 9(b). Thus, "[w]hen mail and wire fraud are asserted as the predicate acts for a civil RICO claim, the standards of Rule 9(b) apply." Bhari Info. Tech. Sys. Private Ltd. v. Sriram, 984 F.Supp.2d 498, 505 (D. Md. 2013). Specifically, the complaint must allege the "time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." Harrison, 176 F.3d at 784. Additionally, "[a] complaint fails to meet the particularity requirements of Rule 9(b) when a plaintiff asserts merely conclusory allegations of fraud against multiple defendants without identifying each individual defendant's participation in the alleged fraud." Adams v. NVR Homes, Inc., 193 F.R.D. 243, 250 (D. Md. 2000) (citations omitted). To be clear, "[t]he requirement of particularity' does not require the elucidation of every detail of the alleged fraud, but does require more than a bare assertion that such a cause of action exists." Frison v. Ryan Homes, No. 04-350, 2004 WL 3327904, at *4 (D. Md. Oct. 29, 2004). Here, Kimberlin has only provided threadbare allegations about the alleged fraud.

At most, Kimberlin alleges that the RICO Defendants, generally, made false statements about Kimberlin's alleged involvement in swatting for the purpose of inducing unknown citizens to send an undisclosed amount of money through the mail or wires to support the RICO Defendants' efforts to destroy Kimberlin's reputation. See ECF No. 135 at ¶¶ 170-179. Without more, these threadbare allegations are not enough to satisfy the particularity requirement imposed by Fed.R.Civ.P. 9(b). Specifically, the SAC fails to allege the time, place, and contents of any of the alleged mail and wire communications. Furthermore, "[th]e Rule 9(b) problem is exacerbated in this [instance]' because multiple defendants are involved, but the complaint does not clearly identify which Defendant played which role.'" Grant v. Shapiro & Burson, LLP, 871 F.Supp.2d 462, 474 (D. Md. 2012) (quoting Davis v. Wilmington Fin., Inc., No. 09-1505, 2010 WL 1375363 (D. Md. Mar. 26, 2010)). Kimberlin has therefore failed to allege the predicate acts of mail and wire fraud under 18 U.S.C. §§ 1341 and 1343.

ii. Obstruction of Justice - 18 U.S.C. § 1503

Kimberlin also alleges the predicate act of obstruction of justice pursuant to 18 U.S.C. § 1503. According to Kimberlin, the RICO Defendants attempted "to influence, obstruct, or impede, the due administration of justice by falsely accusing [Kimberlin] of swatting, and provided false evidence to the FBI and state and local law enforcement officials asserting that [Kimberlin] was involved in the swattings." ECF No. 135 at ¶ 180. Kimberlin maintains that this conduct violated § 1503(a) of the federal obstruction statute.

Section 1503(a) imposes criminal liability on anyone who:

corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.

18 U.S.C. § 1503(a). "To constitute an offense under th[e] [obstruction of justice] statute, the [offending] act must relate to a proceeding in a federal court of the United States." O'Malley v. New York City Transit Authority, 896 F.2d 704, 707, 708 (2d Cir. 1990) (rejecting argument that obstruction of justice as a predicate act under RICO includes state proceedings).

Here, Kimberlin has failed to allege any acts relating to a federal judicial proceeding. Instead, he alleges only acts related to a state court proceeding, as well as various investigations, which are not covered under § 1503(a). See ECF No. 135 at ¶¶ 56, 180, 249; see e.g., United States v. Aguilar, 515 U.S. 593, 599 (1995) ("The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court's or grand jury's authority."). Kimberlin has therefore failed to plead obstruction of justice as a predicate act. See In re Am. Honda Motor Co., Inc. Dealerships Relations Litig., 958 F.Supp. 1045, 1055 (D. Md. 1997) (recognizing that "because § 1503 applies only to obstruction of federal judicial proceedings, [defendant's] actions cannot constitute a predicate act under RICO"); see ...


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