Kimberlin v NBC Franklin Res M2D (OCR) (Redacted)

8/13/2019 Kimberlin v NBC Franklin Res M2D (OCR) (Redacted)

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

GREENBELT DIVISIONBRETT KIMBERLIN,

Plaintiff,v.

NATIONAL BLOGGERS CLUB, etal.,Defendants

No. PWG 13 3059

PL INTIFF S RESPONSE TO DEFEND NT THE FR NKLIN CENTER S MOTION TODISMISS

Now comes Plaintiffand responds in opposition to Defendant The FranklinCenter s Motion to Dismiss. The Courtmust deny a Motion to Dismiss under Rule12 b) 6) of the Federal Rules of Civil Procedure unless it appears beyond doubtthat Plaintiff can prove no se t of facts in support of his claim which would entitlehim to relief. Conley v Gibson, 355 U.S. 41, (1957). The question is whether in thelight most favorable to the Plaintiff, and with every doubt resolved in his behalf, theComplaint states any valid claim for relief. 5A Wright Miller, Federal Practice andProcedure: Civil 2d 1357, at 336. The Court, when deciding a motion to dismiss,must consider well-pled allegations in a complaint as true and must construe thoseallegations in favor of the plaintiff. Scheuerv. Rhodes, 416 U.S. 232, 2361974 ;]enkinsv. McKeithen, 395 U.S. 411, 421-22 (1969). The Courtmust furtherdisregard the contrary allegations of the opposing party. A S Abell Co v Chell 4F.2d 712, 715 4th Cir.1969); Lujan v National Wildlife Federation, 497 U.S. 871(1990) a complaint should not be dismissed for insufficiency unless it appears to acertainty that plaintiffis entitled to no reliefunder any state offacts which could beproved in support of the claim.) emphasis added).


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What Is The Franklin Center1. The Franklin Center for Government and Public Integrity ( The Center ) is a

SOl(c)(3) non-profit, online news organization that publishes news andcommentary on state and local government and politics from a free market,limited government perspective.

The Harm Caused To PlaintiffBy The Franklin Center2. The Franklin Center staked its reputation on the false narrative that Plaintiff

was involved with four swatting attacks and had filed frivolous lawsuitsagainst conservative bloggers when it published the following press release:Franklin Center Joins Lee Stranahan Popehat aron Walker MandyNagy nd Others To Discuss Protection OfThe Free PressBy Tabitha HaleJune 26, 2012For Immediate ReleaseFranklin Center Joins Lee Stranahan Popehat aron Walker MandyNagy nd Others To Discuss Protection OfThe Free PressTonight at 9:3 pm EDT The Franklin Center joins Lee Stranahan, MandyNagy, and last night s SWATting victim Aaron Walker on a webinar to discussrecent attacks on bloggers and the suppression of free speech.Convicted domestic terrorist Brett Kimberlin and his associates haverepeatedly terrorized bloggers and others who highlight his storywith over frivolous lawsuits and 4 SWATtingattacks. SWATting is a dangeroustactic that involves calling a police department to report a false crime to get aSWAT team dispatched to the victim s house. The attacks have includedbloggers Patterico, Erick Erickson, and as recently as last night, AaronWalker.Yesterday, Rep. SandyAdams of Florida and 87 cosigners sent anotherletter to AG Eric Holder urging investigation of costly SWATting tactics. Inher statement, Adams said SWAT -ting is quickly becoming a scare tacticused against political bloggers in an effort to stifle their FirstAmendmentrights.Tabitha Hale, New Media Director at the Franklin Center for Governmentand Public Intergrity, says These tactics are just appalling. A free press isessential to a free society, and attempts to silence those who are telling the


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t ruth re entirely unacceptable. We re glad to have a small p rt in the fightto protect the First Amendment by supporting victims of these attacks. Wewill always err on the side of free speech.Information on tonight s webinar is below. Learn wh t is t stake and learnhow to protect yourselfand your ct of journalism.Title Fighting for a Free PressDate Tuesday june 26 2012Time: 9: pm to : pm EDTReserve your space t the followinglink: https:jjwww2 gotomeeting comjregisterj630051426

3 Both of these st tements out Plaintiffre patentlyfalse. The Center notonly published these s fact on its highly trafficked website, ut it also held awebinar th tmany people attended and which gave voice to an attorneynamed Ken White who st ted how to use search engine optimization toGo ogle Bomb Plaintiff, nd how to use the Streisand effect to harmPlaintiffwith these false narratives. And nother disgraced attorney,DefendantAaron Walker, stated implicitly th t Plaintiffsw tted him and wastrying to get someone killed. Tabitha Hale, The Center s social mediadirector, put the weight ofher authority and The Center s behind these falsest tements nd the people who participated in the defamatory statements.This webinarwas tape recorded and transcribed, and spre d widely to harmPlaintiff. The h rm was enhanced because The Center has a reputation forsticking to the facts even ifthey re from a conservative viewpoint.

4 Where did The Center get this information? From members of the NationalBloggers Club headed y convicted felon and DefendantAli Akbar who falselyportr yed NBC as a 501(c)(3) and defrauded tens ofthous nds frominnocent conservatives based on these false narratives. Specifically, Tabitha


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Hale p rroted a post from Defendant Robert Stacy McCain for her pressrelease without doing one ounce of fact checking. Atthe time ofthe pressrelease Plaintiff had never filed a single lawsuit against ny conservativeblogger and did not even knowwh t swatting was until he was falselyaccused of it Because ofThe Center s strong reputation on accountabilityanyone who read or he rd th t The Center was behind these defamatoryallegations automatically believed th t they wer e t rue. But had Ms Haledone even a cursory search on PACER she would have quickly seen th tPlaintiff had never filed a lawsuit against any conservative blogger. Had shecalled Plaintiff to sk ifhe was involved with swattings she would havelearned th t he was not. People expect not only t he truth from The Centerbut also due diligence.

5 After the webinar many people sh red the transcripts audio and link of thewebinar and others used The Center s reputation to give credence to thefalse narrative. Members ofCongress were told th tThe Center co-signedthe false narrative and this gave more of them the necessary comfort level tojoin the demand th t the Attorney General investigate Plaintifffor theswattings. h t investigation caused the FBI to show up unannounced tPlaintiffs home and nother agent blindsided Plaintiffs wife when she wast a meeting demanding th t she tell them bout the swattings while insistingth t she not tell Plaintiffhe talked to her. There re now thousands of postsnd tweets online accusing Plaintiffof swatting.


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6 Because of these false narratives involving swattings and lawsuits Plaintiffreceived untold num er ofdeath threats had stalkers come to his home andtake photos of him nd his daughter and had threatening calls to his elderlymother pre teen daughter and all his neighbors. Plaintiiffs non profitemployer has lost an established institutional funder and Plaintiffsdaughters have been bullied t school so much th t his older daughter had tochange schools. He has been under siege for two years despite the fact th the does even blog comment or tweet. The Center and others havedemonized Plaintiffwith false narratives th t resulted in a digital witch huntdesigned to create and incite a right wing mob filled with hate towardsPlaintiff. This was me nt to cause opprobrium to destroy him his fundingbase and his reputation s the director of non profits. And even more TheCenter conspired with and gave voice and credibility to Defendants such asAaron Walker and Patrick Frey who stated th t their intention was toimprison Plaintiff. What gre ter violation could occur to a living person thanbeing falsely accused and imprisoned for somethinghe did not do?

7 This was a conspiracy and a shameful and tortious one t that: it hasbesmirched the otherwise good reputation of The Center as well s Plaintiffsname and reputation. The conspiracy continues to this day. Rather thanbeing above the noise ofthe mob The Center threw red me t to it and themob responded. Tabitha Hale took the word of disreputable individuals suchas Defendants Ali Akbar Aaron Walker and Robert Stacy McCain who usedthese false narratives to line their pockets with iII gotten gains and raise


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their Google rankings. This was reprehensible and immoral. And The Centerdid not even investigate these people before buying into their falsenarratives.

The Center falsely and recklessly broadcasted Plaintiffs name as theperpetrator ofa horrible crime and in doing so The Center was eithergrossly negligent or intentionally malicious. This reporting of blatantly falseinformation was irresponsible and outrageous. But more the conduct of TheCenter violated RICO because The Center became part of the Enterprise andthe conspiracy among the defendants to commit fraud obstruction andextortion as part of their scheme of racketeering. And finally The Center sconduct violated Plaintiffs civil rights because it was part ofa conspiracy tohave him falsely imprisoned in retaliation for his exercising his right toredress. Plaintiff did nothing to a sk to be thrust into this false narrativesituation except exercise his First Amendment right to redress when s ome o fthe Defendants engaged in tortious and criminal conduct toward him.

PlaintiffAdopts his Responses Hoge Walker and CapitolStrategies Motions Dismiss9 The Center basically parrots the Motion to Dismiss filed by Defendant DB

Capitol Strategies and raises other arguments raised by Defendants Hogeand Walker. Therefore Plaintiffadopts the arguments in his responses tothose three defendants. These are as follows:

10. The Center defamed Plaintiff by publishing and then saying at a webinar thatPlaintiffswatted four conservative bloggers and filed more thanfrivolous lawsuits against conservative bloggers. The statute of limitations


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does not apply because 1) The Center s long relationship and conspiracywith Defendant Akbar and Defendant National Bloggers Club which hasrepeated these false allegations within the one year SOL 2) Plaintiff wasthreatened with physical harm and death ifhe went to court or talked to theauthorities thereby tolling the SOL Although some of those threats arequoted in the Complaint on page 12, a sampling ofmore threats is attachedas Exhibit A

11. Plaintiff has presented sufficient facts to meet the elements of a false lightclaim in that The Center made false statements about his involvement in ahorrible crime, which a reasonable person would find offensive, and that TheCenter acted intentionally or with reckless disregard for the truth in makingthose untrue statements.

12. Plaintiff has properly alleged a RICO and RICO conspiracy case by showingthat The Center joined the RICO Enterprise in order to enhance its goal ofdestroying Plaintiffs livelihood, driving him out ofbusiness and imprisoninghim for a crime he did not commit. By joining the Enterprise and conspiracy,The Center is responsible for the predicate acts of the other Defendants.

13. Plaintiffs allegation of conspiracy to violate his civil rights under 4 USC985 is sufficient since he has alleged that The Center joined the conspiracyto violate his civil rights by falsely accusing him of serious crimes which wasintended to have him arrested and imprisoned. Its defamatory press releaseand webinar included the false accusations made by Los Angeles DeputyDistrict Attorney Patrick Frey, aka Patterico, who was attempting to have


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Plaintiffrrested and imprisoned based on his false accusations ofswattingsby Plaintiff. Making such false accusations in conspiracy with the otherDefendants is extremely irresponsible nd outrageous. There re thousandsofcases in the history ofour country where innocent people have beenfalsely accused of something by an overzealous or corrupt prosecutor, and acascading of unfortunate events then resulted in a false arrest, falseimprisonment, execution or mob attack. the inst nt case, The Centerdded a veneer of credibility to the false allegations of swatting there yincreasing the possibility of a false rrest of Plaintiff.

14. Plaintiffwithdr ws the allegation offr ud nd misrepresentation.15. Plaintiff has clearly demonstr ted Intentional Infliction of Emotional Distress

because the actions of The Center in falsely accusing Plaintiff ofswatting fourconservative bloggers nd s uing 1 00 m or e w er e be yo nd all b ou nds o fdecency in a civilized society. The fact th t The Center has kept this falseinformation on its website even fter being informed it is false shows malicend outrageous conduct.

on lusionDefendant The Franklin Center has notmet its urden under Rule 12 b) 6)of showing th t Plaintiff can prove no se t of facts to support his claims. fact, based on the allegations in the Complaint, as supported by the exhibitsto the Plaintiffs various Responses nd his affidavit, this Court must acceptthe allegations s true. The Center s Motion to Dismiss should be denied.


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Respectfully submittedBrett KimberlinBethesda M 20817

Certificate ofService

r certify th t I mailed a copy of this response to attorneys for CapitolStrategies and The Franklin Center and to Defendants Hoge and Walker Iemailed this to Defendant Stranahan n the attorney for Defendants Freyand Nagy all this 17t day ofJanuary 2014

Brett Kimberlin


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Thursday January 16 2 4 8:54 Subject: [Contact] Message from AaronDate: Saturday May 26 2012 7:57 From: slapphappy@aol comTo: Justice Through Music rmy Of D a v i d s s e n t a m e s s a g e using th e con tac t form a tht tp : ve lve t revo lu tion us newvr index php?q= con tac tD o n t show up in c o u r t Tuesday o r you a re d e a d T h i s i s y o u r o n l y w a r n i n gR e p o r t a s i nappropr i a t e :ht tp : ve lve t revo lu t ion us newvr index php?q=mol lom repor t mol lom_conten t120527f6bb7c12dO d8

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Thursday January 16 2014 8:54 PMSubject: {Contact] Brett KimberlineDate: Sunday May 27 2012 1:24 From l@live comTo Justice Through Music

Loui sent a message using the contact form thttp: www jtmp org jtmp index php?q=contactf Bret t does not s t r t to ac t l ike a grown up and qui t c l l ing th e p oliceonpeople l ike a l i t t l e punk There wi l l be he ll to pay

Report as inappropr ia te :http: www jtmp org jtmp index php?q=mollom report rnollorn_contentl1205271e045086b4f2

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Subject: let s do lunch KimberlinDate: Saturday June 2012 3:49 PMFrom: Liz Rocha To: I l l be bringing the straw for you. It s now no t a matter of if.Brett Kimberlin neck broken by 110lbs Female Marine.WarmlyLiz Rocha

Thursday January 16 2 14 8:53 PM

age


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Thursday January 16 2 4 9:04 Subject: [Contact] JTM contributionsDate: Friday May 25 2012 9:42 AMFrom: I l@gmaiJ comTo: Justice Through Music

James sent a message using th e co nta ct form a thttp://www.jtmp.org/jtmp/index.php?q=contact.I can l i e l i k e you. I d o n t get int imidated get on my bad s ide y o u l lgetthe f u l l wrath. Not j u s t from but . I have my own. The extreme wing of theTPhas arr ived . ~ s message s f o r Mr. K I t would not s u i t the bes ti n t e r e s t sof a l l people involved in your movement to shut the F K up t h a tincludesyou. I have lawyers, cash a ready act ion response team center . Youd o n tf ind me on the web. I d o n t speak with cameras in the room or audio fortheworld t o hear . J u s t as you operate i n darkness as a l e f t i s t f igure I dothesame on the r i g h t We ve reached a c r u c i a l point . Our members are i tchy .Actions are j u s t wating fo r o rd ers . This i s the l a s t t ime I w i l lcommunicatewith t h i s organizat ion. You have been warned I w i l l have a l l the d i r t ys e c r e t s make on the nat ional scene. Including a c e r t a i n otherinappropr ia te r e l a t i o n s h i p not mentioned i n t h i s a r t i c l e When you spokethother night I was i n the audience t h a t s when my laser focus came t oyou.I m in your ranks not i n your ranks. W has no idea who the very highl e v e l mole i s feeding my information. I v e been able to t i p o f f copsmult iplet imes when th e a na rc his ts were ready t o go black blocing. My t e n t a c l e shavej u s t reached a l i t t l e f u r t h e r when soemone e l s e your organizat ion hasagreed t o stream info t o me. Someone you know of course. I hope you l i k etheemail address I created j u s t for t h i s pos t . Look behind you t h a t camerat h a t f lashes may j u s t be one of our operatives .Report as inappropr ia te :http://www.jtmp.org/jtmp/index.php?q=mollom/report/mollom_content/12052595ec619fa9bb

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Thursday January 16 2 4 8:53 PMSubject: [Contact] prisonDate: Sunday June 10 2012 : 9 PMFrom I@Yahoo comTo Justice Through Music B r e t t kimberlin sent a message using th e c on ta ct form a thttp://www velvetrevolution us/newVR/index php?q=contactey B r e t t prepare yourself Looks l i k e y o u l l be going back to prisonsoon

Report as inappropr ia te :http://www velvetrevolution us/newVR/index php?q=mollom/reportlmollom_content/1206105425ab2f7211

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Thursday, January 16, 2 4 9:00 PMSubject: [Contact] Brett Kimberlin exposed.Date: Friday May 25 2 12 10:55 AMFrom [email protected] Justice Through usic

James s en t a m essage u s i n g th e co n tac t form a tht tp : ww w j tmp org jtmp index php?q=contac tNow we know who you a re y o u v e been e x p o s e dR e p o r t a s i n ap p ro p r i a t e :h t t p : / / w w w j t m p o r g / j t m p / i n d e x p h p ? q = m o l l o m / r e p o r t / m o l l o m _ c o n t e n t l1205252100cd46762c

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Thursday January 16 2014 8:55 PMSubject: [Contact KimberlinDate: Saturday May 26 2012 1:15 From I@yahoo comTo: Justice Through Music Your Enemy sen t a message using th e c on ta ct form a tht tp: / /www.velvetrevolut ion.us /newVR/index.php?q=contact .We know who you a re We re coming fo r you. You wi l l pay.Report as inappropr ia teht tp: / /www.velvetrevolut ion.us /newVR/index.php?q=mollom/repor tmollom content 120526ae1866472371

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Thursday January 16 2 14 8:55 PMSubject [Contact] scolal JusticeDate: Saturday May 26 2012 7:03 AM

I Jeo govTo: Justice Through Music

Ishmeal Cunshot sent a message using the contact form a thttp: www velvetrevolution us newVR index php?q=contactret t Kimberlin i s done the hunter i s the hunted

Report as inappropr ia te :http: www velvetrevolution us newVR index php?q=m ollom reportmollom content 12052694fOac6b724d

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Thursday January 16 2014 9:03 Subject: [Contact] Forgot to mention one oth r thinDate: Friday May 25 2012 10:07 AMFrom: I I@gmail comTo: Justice Through Music

jamesctheman s e n t a message uSlng th e c o nta c t form a th ttp ://w w w jtmp o r g /jtmp /in d e x p h p ? q =c o n ta c tI f anyone o f th e minions who do your d i r t y work even so much a s show uparound my house which i s n o t l i k e l y o r s u b j e c t anyone I know t o any s o r to fi n t i m i d a t i o n we w il l a ct iv ate ome a f t e r one s i n g l e person I knowi n cl u d i n gme I w i l l s h u t yo u down THIS IS YOUR ONLY W RNING ND I M DROP YOU DE DSERIOUS Try me Keep u p i your a t t a c k s r a p i s t Keep your a t t a c k st e r r o r i s t Id o n t bow to pr e ssur e o r t a c t i c s I have f r i e n d s on th e swat team i n mytownP r e t t y sad y o u r e compensating fo r a s m a l l p e n is s i z e by a t t a c k i n g o t h e r sReport as i n a p p r o p r i a t e :http://www jtmp org/jtmp/index php?q=mollom/report/mollom_content12052595ged5ge3cef

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Appsc U charliefoxtrotblog.blogspot.com/2012/06/dear brett kimberlin.html?m= 1

Stream your iTu

Brett Kimberlin...won t be moving to an undisclosed location

No slight intended to the esteemed 0 who obviously felt the actual threatrequired such action. I just saw thcture in my bJog history, and the idea popped into my head )ha Foxtrots


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Robert Stacy McCain1

ol l ow ...

Pump-action 12-gauge is very simple tooperate. Just sayin RT BrianAS9 Buy agun and learn to use it ifyou don t alreadyknow.... Reply Retweet * Favorite4 2

T

7 PI1 - 21 Icl l In c pet

Q 38 Dustin 11hrsmccaln I m glad free citizens can protect

themselves. but it sucks that a blogger has to worry abthow to protect his family. BrianA59

Q richard mcenroe I hrsmccain BrianA59 s why I bought a .44 SA. Pullthis, pUll this. repeat

i

Q 60 Rick Wilson )1 nrsmccain Aim center-mass

D

11h

Q 7 Brian Arsmccatn Works for me too

......_ Detal S

12h

1:150 Ellie Lockwoodrsmccain bnana59 Recently passed Basic Pistoland have applied for concealed carry Thinking a 12

gauge is a good idea too.

= ~


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LowlyLawStudentTIle thought of a terrorist attempting to bully a fellowAmericanmakes my blood boil. There are extra bedrooms. plenty of food,free high speed internet, quick access to an international airport,and enoughguns and ammo to last for days a\ ailable at absolutelyno cost to you in the Commonwealth ofKentucky. Just let meknow and it s all yours.: cia: sago Likes Like

Arm yourself and your family. And nail thebastard to the wall. rSInccaintheothennccain.COnl/2012/05/21/neYShowing 2 of 93 comments

werewife

ort by oldest first

I ha\ e thisbizarre fantasy image of you Glenn Reynolds, and Bill\\ hittle holding downKimberlin while Ace snaps his neck as asacrifice in honor of the spirit ofAndrew Breitbart.Hey, a girl can dream, and honi soit qui mal y pense.2 days ago Likes Like Reply


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Chris \Vysocki Blogger. Dad. Curmudgeon. Long :utferirg ...Hey, Tony Soprano s my *neighbor*. Just sayin'

day:: ago :; likes

Pathfinder s wife

like Repl:'

I don't think th e LoL is exactly th e place you'd be looking for, sowon't even offer.But pig farms vIe doha\'e, just in case.

Taxpayer1234 Teaching college kids to think since 1984.Colorado: Has a Make My Day law, Also, mountains and stuff.PS--I hit your tip jar. Bestwishes for a safe relo

days ago Like l t

JoIn Fast

like Reply

Kimberlin lo\'es to sue people to shut them up, eM \ Vell he canha\'e a piece of me, I ha\'e lawyers, guns, an d money, Plus I'mjudgement-proof, and *lo\'e* spending time in court. Hey, maybesomebody should sue him and namehis non-profit orgs as codefendants. I belie\'e the ci\'il component of the RICO Act applieshere. Am I o\'erlooking something'? da\ > like Reply

Kimberlin v NBC Franklin Res M2D (OCR) (Redacted)

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