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Kimberlin v. Hunton & Williams LLP

United States District Court, D. Maryland, Southern Division

March 29, 2016

BRETT KIMBERLIN, Plaintiff,
v.
HUNTON & WILLIAMS LLP, et al. Defendants.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District Judge.

Plaintiff Brett Kimberlin brought this action against numerous Defendants-Hunton & Williams, LLP ("H&W"), United States Chamber of Commerce ("COC"), Palantir Technologies ("Palantir"), Berico Technologies ("Berico"), Mantech International ("Mantech"), Stratio Information Technology, LLC[1] ("Stratio"). John Woods, Richard Wyatt, Robert Quackenboss, Greg Hoglund, Aaron Barr, Alex Karp, Matt Long, Nicholas Hallam, Matthew Steckman, Pat Ryan, Sam Kremin, "John Doe Chamber of Commerce Employees, " Pacific Northwest National Laboratory ("PNNL"), Bill Nickless, and William Hoge-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 and to prevent Kimberlin from exposing the criminal enterprise. This Memorandum Opinion and accompanying Order address Defendants' Motions to Dismiss, ECF Nos. 2, 40, 49, 50, 53, 57, 58, and 64, as well as a variety of other pending motions and requests, ECF Nos. 43, 68, 75, 77, 78, - 83, 94, 99, 100, 106, 107, 108, 109, 124, 126, and 129. A hearing is unnecessary. Loc. R. 105.6 (D. Md. 2014). For the reasons stated below, Defendants' Motions to Dismiss are GRANTED.

I. BACKGROUND[2]

Brett Kimberlin has been involved with both Justice Through Music ("JTM") and VelvetRevolution.us ("Velvet"), which is a "501c(4) public charity since 2005 dedicated to corporate and government accountability, " for more than eleven years. ECF No. 1 at 6, 10. StopTheChamber.com ("STC"), a campaign of Velvet, "was launched in September 2009 in order to expose unethical activity, excesses and lack of transparency of the Chamber of Commerce." ECF No. 1 at 10.[3] The COC wanted to stop criminal investigations being assisted by Plaintiff and conspired with H&W to intimidate and deter Plaintiff from cooperating with the FBI's investigations and to undermine Kimberlin's credibility. ECF No. 1 at 12.

In 2009, the COC directed Defendants Woods, Wyatt and Quackenboss, lawyers at H&W, to target Plaintiff and others "through any means possible, including using illicit and secret black operations in order to stop them from exposing criminal activity and cooperating with federal officials and investigations." ECF No. 12-13. When STC contacted the FBI to request a criminal investigation of the COC in December 2009, COC and H&W "responded by contacting FOX News, which wrote an article defaming Plaintiff and his employer that resulted in STC being attacked with a coordinated campaign of more than 100 threats of violence, including death threats, which STC reported to the FBI." ECF No. 1 at 13. "H&W also hired investigators to dig into the personal lives of STC and its principals, including Plaintiff, and provided defamatory information to reporters at FOX News, which FOX then published in various articles." Id.

In October 2010, H&W asked Palantir to help COC, resulting in Steckman, a Palantir employee, telling H&W "that he would like to bring in two other private security companies, [Stratio] and Berico Technologies to help with the project, " just a week after the STC letter to the FBI. ECF No. 1 at 16. The three companies formed a team called "Themis" and "Palantir General Counsel Matt Long, HB Gary CEO Aaron Barr, and Berico COO Nicholas Hallam signed 'Teaming Agreements' on November 16, 2010." ECF No. 1 at 18. The H&W attorneys asked Team Themis to use "Themis techniques and cyber technology against people and organizations opposed to the COC, " resulting in Team Themis "preparing a massive Si2 million plot to undermine STC, Plaintiff, reporters Glenn Greenwald and Brad Friedman and others." ECF No. 1 at 19.

In a January 2011 PowerPoint presentation that Team Themis prepared for H&W, Team Themis "promised to 'mitigate effect of adversarial groups' and discussed the youthful criminal record of Plaintiff, and said that its goal was to 'discredit, confuse, shame, combat, infiltrate and fracture' COC opponents." ECF No. 1 at 26. After a group of hackers leaked Stratio's emails and several news outlets covered the story, see ECF No. 28-31, STC filed complaints with the District of Columbia Bar against Woods, Wyatt, and Quackenboss on February 23, 2011, ECF No. 1 at 33. On March 11, 2011, STC "notified Defendant [Stratio] and most other Defendants of its intent to seek legal remedies in a court of law for the conduct alleged in the instant Complaint." ECF No. 1 at 33.

In the fall of 2014, PNNL and Nickless "began a covert and then overt campaign to defame, harass and bully Plaintiff with disinformation and defamatory blog posts/tweets meant to harm him” ECF No. 1 at 34.

Kimberlin filed his Complaint to recover damages against Defendants for allegedly engaging in a multitude of tortious acts, including a criminal racketeering enterprise that engaged in mail fraud, wire fraud, obstruction of justice, tampering with a witness or victim, money laundering, and extortion, for the purpose of destroying "Kimberlin and his ability to earn a living in retaliation for his work as the director of a non-profit organization that used legal means to expose unethical and/or criminal activities of the United States Chamber of Commerce ("COC") and its senior principals." ECF No. 1 at 1-2, 52-55.

Kimberlin raises the following claims: (1) violation of the Civil Rights Act, 42 U.S.C. § 1985(2); (2) fraudulent conveyance; (3) conspiracy to invade privacy-intrusion into seclusion; (4) invasion of Privacy, appropriation of name, intrusion into seclusion, and unreasonable publicity; (5) defamation and false light; (6) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and 1962(d); (7) conspiracy to interfere with business relations and conspiracy to interfere with prospective economic advantage; and (8)[4] intentional infliction of emotional distress. ECF No. 41-60.

II. DEFENDANTS' MOTIONS TO DISMISS

A. Standard of Review

Federal Rule of Civil Procedure ("Rule") 12(b)(6) permits a defendant to present a motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009); see also Conn. Gen. Life Ins. Co. v. Advanced Surgery Ctr. Of Bethesda, LLC, No. DKC 14-2376, 2015 U.S. Dist. LEXIS 91689, at *13 (D. Md. July 15, 2015) ("At this stage, all well-pled allegations in a complaint must be considered as true and all factual allegations must be construed in the light most favorable to the plaintiff."). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

When assessing a motion to dismiss, courts refer to the pleading requirements of Rule 8(a)(2) to determine if the complaint adequately states a claim for relief. See Bell All. Corp. v. Twombly, 550 U.S. 544, 554-55, 127 S.Ct. 1955 (2007). Rule 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A well-pleaded complaint may proceed even if the "actual proof of those facts is improbable and recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (internal quotation marks omitted). For a motion to dismiss, courts are required to assess "the sufficiency of the complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

However, "Rule 8(a)(2) still requires a 'showing, ' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 555 n.3. That showing must consist of more than "labels and conclusions, " "a formulaic recitation of the elements of a cause of action, " or "naked assertions devoid of further factual enhancement." Iqbal, 556 U.S. at 678. "In evaluating the complaint, unsupported legal allegations need not be accepted." Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Similarly, "[l]egal conclusions couched as factual allegations are insufficient as are conclusory factual allegations devoid of any reference to actual events." Conn. Gen. Life Ins. Co., 2015 U.S. Dist. LEXIS 91689 at *13-14 (internal citations omitted). If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, " the complaint has not shown "that the pleader is entitled to relief." Iqbal, 556 U.S. at 679.

Courts are generally not allowed "to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007). "However, there are limited circumstances in which the court may consider extrinsic documents in the context of a motion to dismiss, " including "documents 'attached to the complaint, as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.'" Philips v. Pitt. Cty. Mem. Hosp., 572 F.3d 176. 180 (4th Cir. 2009).

B. Plaintiffs Claims are Time-barred

Courts dismiss claims under Rule 12(b)(6) when it is clear from the complaint that the statute of limitations has expired. See Knickman v. Prince George's Cty., 187 F.Supp.2d 559, 563-64 (D. Md. 2002) (granting defendant's Rule 12(b)(6) motion to dismiss because plaintiffs claim was barred by the applicable statute of limitations). Civil RICO actions must be filed within four years. Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 156, 107 S.Ct. 2759 (1987); Potomac Elec. Power Co. v. Elec. Motor & Supply, Inc., 262 F.3d 260, 266 (4th Cir. 2001) ("[Plaintiff] may not 'bootstrap' time-barred claims by linking them to later, non-time-barred claims."); Fowler v. Wells Fargo Home Mortg, Inc., No. GJH-15-1084, 2015 U.S. Dist. LEXIS 63076, at *8 (D. Md. May 13, 2015) (citing Klehr v. A.O. Smith Carp., 521 U.S. 179, 188-89, 117 S.Ct. 1984 (1997)). The four year period begins to run from when the "plaintiff knew or should have known of his injury." Rotella v. Wood, 528 U.S. 549, 554, 120 S.Ct. 1075 (2000). If the allegations in a complaint "show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim." Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910 (2007).

Kimberlin filed his RICO claim on March 16, 2015, ECF No. 1, making his suit time-barred if he knew of the alleged injury on or before March 16, 2011, Fowler v. Wells Fargo Home Mort, Inc., 2015 U.S. Dist. LEXIS 63076, at *9 ("[I]t is the Plaintiffs knowledge of [his] own injury that controls the running of the statute of limitations, and not Plaintiffs knowledge of the underlying RICO pattern." (citing Rotella v. Wood, 529 U.S. at 556-57)). Plaintiff was or should have been aware of his injury by March 11, 2011. See ECF No. 1 at 33. Prior to that date, 70, 000 emails from Stratio discussing the alleged conspiracy were leaked on the internet on February 7, 2011. ECF No. 1 at 28. By February 18, various news outlets, including a post written by Velvet's co-founder, Brad Friedman, reported the potential campaign by Team Themis and H&W to discredit Velvet and other COC opponents. ECF No. 1 at 28-31. On February 23, 2011, STC relied on the leaked emails to file complaints with the District of Columbia Bar Counsel against H&W attorneys. ECF No. 1 at 33. Finally, on March 11, 2011, STC sent a letter to Stratio "and most other Defendants of its intent to seek legal remedies in a court of law for the conduct alleged in the instant Complaint." Id. Plaintiff asserts that this Court has no choice but to accept his claim that his "knowledge of his injury first came in May 2012, " and any disagreement must be left to a jury. ECF No. 74 at 6. However, this Court need not accept a declaration as fact when it is contradicted both by the Complaint and by common sense. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979) (rejecting "conclusory allegations" not supported "by any reference to particular acts, practices, or policies"). Plaintiff describes himself as one of STC's "principals, " ECF No. 1 at 13, and alleges that he has been involved with Velvet "for more than eleven years, " ECF No. 1 at 6. It is clear that Plaintiff knew or should have known of his purported injury before March 16, 2011. Thus, his RICO claim is time-barred.

Plaintiffs § 1985(2) claim, which has a three-year statute of limitations, is time-barred as well. See Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999) ("It is well-settled that sections 1983 and 1985 borrow the state's general personal injury limitations period, which in Maryland is three years."). The statute of limitations begins to run on the date of the alleged wrong if the potential plaintiff is aware, or should be aware, that he or she has been wronged. Murphy v. Merzbacher, 697 A.2d 861, 865 (Md. 1997); see also Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975) ("Federal law holds that the time of accrual is when plaintiff knows or has reason to know of the injury which is the basis of the action").

Although Plaintiff vaguely alleges that the Defendants and unidentified "other actors" associated with Defendants continued the conspiracy against him through the present, ECF No. 1 at 32-33, this is unsupported and insufficient to save his claim from being time-barred, see Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998) ("Causey alleged he was continually harassed, but we conclude that an allegation of continuous harassment will not save a claim that is otherwise barred by the statute of limitations, absent some showing that an actual violation occurred within the limitations period."). This is particularly true given the lack of any facts that show that Defendants "engaged in at least one act of misconduct during the limitations period." Olukayode v. Bait Cty., 450 F.Supp.2d 610, 617 (D. Md. 2006).[5]

C. Claim I - 18 U.S.C. § 1985(2)

Even if Plaintiff s claims were not barred by the statute of limitations, Plaintiff has insufficiently pleaded facts for Claim I. There are two possible bases for claims under § 1985(2). The first clause of § 1985(2) applies if two or more persons:

[C]onspire 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 account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror ....

18 U.S.C. § 1985(2) (2012). The second clause of § 1985(2) applies when two or more persons:

[C]onspire 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 ...

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