BRETTKIMBERLIN,

Plaintiff,
v.
NATIONALBLOGGERSCLUB,etal
Defendants.
.. , : ,
.,1 ' '. "
No. PWG13 3059
PLAINTIFF'S REPLY TO FIVE DEFENDANTS' RESPONSES TO PLAINTIFF'S
MOTION TO FILE SECOND AMENDED COMPLAINT
Now comes Plaintiff Brett Kimberlin and replies to five Defendants' Responses to
his Motion to File Second Amended Complaint.
1. Five of twenty-three Defendants named in the Second Amended Complaint
filed Oppositions to Plaintiffs Motion to File a Second Amended Complaint-
Defendants Hoge, Walker, Malkin, Twitchy and DBCapitol Strategies. In
short, they argued that Plaintiff failed to comply with Local Rule 103.6( c) by
missing a few, non-prejudicial bolds and strike-throughs in the redlined copy
he provided to them. They also argue that the amendments are futile and in
bad faith. Each of these arguments is without merit
2. It is well established that when a party seeks amendment under Fed. R. eiv. P.
15(a)(2), "[t]he court should freely give leave whenjustice so requires," id., and
should deny leave to amend only if amendment "would prejudice the opposing
party, reward bad faith on the part of the moving party, or ... amount to futility,"
MTB Servs., Inc. v. Tuckman-Barbee Constr. Co., No. RDB-12-2109, 2013 WL
1819944, at *3 (D. Md. Apr. 30,2013). Otherwise, "[i]fthe underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief' and the
Case 8:l3-cv-03059-PWG Document ll9 Filed 04/09/l4 Page l of 7
plaintiff moves to amend, the Court should grant the motion to give the plaintiff
"opportunity to test his claim on the merits.'; Farnan v. Davis, 371 U.S. 178, 182
(1962). In Farnan, the Court put it this way:
"It is too late in the day and entirely contrary to the spirit of the Federal Rules
of Civil Procedure for decisions on the merits to be avoided on the basis of
such mere technicalities. "The Federal Rules reject the approach that
pleading is a game of skill in which one misstep by counsel may be decisive to
the outcome and accept the principle thatthe purpose of pleading is to
facilitate a proper decision on the merits." Conlevy. Gibson. 355 D. S. 41. 4B.
The Rules themselves provide that they are to be construed "to secure the
just, speedy, and inexpensive determination of every action." Rule 1....
Rule 15 (a) declares that leave to amend "shall be freely given when justice
so requires"; this mandate is to be heeded. See generally, 3 Moore, Federal
Practice (2d ed. 194B),1m 15.0B, 15.10. If the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his claim on the merits."
3. In the instant case, the Defendants have never addressed the merits of
Plaintiffs claims as alleged in the First Amended Complaint Now they want
to prohibit Plaintiff from even filing his Second Amended Complaint so they
do not have to respond why they (a) falsely and publicly accused Plaintiff of
criminal acts, (b) raised massive amounts of money based on those false
narratives through a fake 501(c)(3) non-profit, (c) tried to have him arrested
based on those false narratives, (d) tried to ruin his current and future
livelihood, (d) stalked, harassed, assaulted and subjected him to emotional
distress, (e) engaged in fraud, money laundering and extortion, and (f)
misled Members of Congress and law enforcement into assisting them in
their reprehensible, tortious activities.
4. Five of twenty-three Defendants named in the Second Amended Complaint
have complained about a handful of non-prejudicial strike-throughs and
Case 8:l3-cv-03059-PWG Document ll9 Filed 04/09/l4 Page 2 of 7
bolds in their redJined copy. Plaintiff explained to all counsel in this case that
at the time he was preparing the SAC,there were two major snowstorms in
the Washington, DCarea that resulted in power outages at his home, several
snow days where both state and federal offices were closed, and an inability
to travel. In addition, he explained that his children were home from school
during that time, and his youngest daughter contracted the highly contagious
slap cheek infection, which resulted in an emergency trip to the doctor and
days out of school. He further explained that he is a pro se litigant with no
support staff who manually made the changes to the SACamidst that chaotic
two-week period. However, in order to address these complaints and fully
comply with rule l03.6(c), Plaintiff subjected his Second Amended Complaint
to the "Compare Copy" tracking program in WORDand sent all the attorneys
bye-mail and Defendants Hoge and Walker by USMail a copy of the updated
redlined copy of the SAC. Plaintiff has clearly rectified this complaint about
non-prejudicial "technicalities."
5. The five Defendants have used their motions to make arguments properly
made in a Motion to Dismiss, such as challenges to the various claims on the
ground that the amendments are futile because they fail to state a claim. To
the contrary, Plaintiff consulted the Defendants' Motions to Dismiss when
drafting the SACand corrected and addressed every substantive deficiency
raised in them. For example, he bolstered his RICOclaim by adding facts and
two additional state law claims to further demonstrate that the Defendants
harmed Plaintiffs property and business interests. The Ninth Circuit, in an
Case 8:l3-cv-03059-PWG Document ll9 Filed 04/09/l4 Page 3 of 7
en bane decision, analyzed the RICOstatute and found that where a Plaintiff
alleges "any property interest valid under state law," he meets the business
and property requirement of RICO. Diaz v. Gates, 420 F3d 897 (en banc) (9th
Cir.2005).
6. Additionally, in an abundance of caution, Plaintiff also modified his
Complaint to allege that the Defendants' false statements were pleaded
under defamation and/or false light in order to ensure that they were
covered under Maryland's statute oflimitations, which is one year for
defamation and three years for false light.
7. The Defendants make the incredible argument that Plaintiffs SACis not a
short statement of the claim after arguing in their Motions to Dismiss the
First Amended Complaint that Plaintiff did not state sufficient facts to state a
claim.
8. Defendant Walker relies on a show cause Order from Judge Titus in Plaintiffs
copyright infringement case to argue against allowing him to amend his
complaint. However, once Plaintiff showed cause, Judge Titus on March 20,
2014, granted Plaintiff leave to file his Amended Complaint in that case and
ordered the Clerk to issue summons. Kimberlin v. KimberlinUnmasked, RWT-
13-2580, ECF16.
9. Defendants argue that Plaintiffs Complaint is simply an attack on
conservatives, implying that the Defendants do not commit torts. This is
belied by the fact that many other people have recently sued eleven of the
Defendants in this case for engaging in similar tortious conduct. For
,.
Case 8:l3-cv-03059-PWG Document ll9 Filed 04/09/l4 Page 4 of 7
example, Shirley Sherrod sued Defendant Breitbart.com for creating a false
narrative about her that resulted in her firing from the Department of
Agriculture. Sherrod v. Breitbart, No. 1:11-cv-00477-RJL, (USDCDC).
Defendant James O'Keefe has been repeatedly sued and criminally
prosecuted for his conduct, including a suit last month for defamation by his
own conservative employee. Francisco v. O'Keefe, No. 51182/2014 (NYSC).
Defendants Glen Beck, The Blaze and Mercury Radio Arts were just sued last
week for defamation after falsely accusing a Muslim of involvement in the
Boston Marathon Bombings. Alharbi v. Beck, l:l4-cv-1l550-PBS, (USDC MA).
Patrick Frey was sued by conservative Nadia Naffe for trying to destroy her
reputation with false statements and leaks of personal and medical
information. Nadia v. Frey, (USCA9
th
Cir. No. 13-55666, USDCNDCANo.
12CV08443). Even Defendant Stranahan, a conservative who was fired last
month by Defendant Breitbartcom after writing several stories about the
malfeasance and corruption of Defendant DBCapitol Strategies CEODan
Backer, has stated that he is planning to sue Breitbart.com and its editor
Brandon Darby for defamation. http://www,texasobserver.org/triumph-
breitbart-texas/
10. Moreover, Plaintiff has sued Defendants Hoge, Walker, Akbar, McCainand
KimberlinUnmasked in Montgomery County Circuit Court for defamation and
other torts different than those alleged in the instant case. Kimberlin v.
Walker, et aI, No 380966-V. OnJanuary 13, 2014, at a hearing on the
Defendants' Motions to Dismiss, Judge Burrell denied their Motions to
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Dismiss, which raised similar arguments to those raised in this case. She
found that Plaintiff presented a prima facie case against the Defendants, and
castigated them for their conduct. Clearly, all the above suits against eleven
of the Defendants undermine the Defendants' argument that Plaintiff is
unfairly suing them, that his suits have no merit, or that this suit unfairly
prejudices them.
11. The issue before the Court is whether Plaintiff should be granted leave to file
his Second Amended Compliant. In the Court's Order of February 21,2014,
ECF88, the Court stated that it was granting Plaintiffs request to file that
amended complaint: "BecaUfieFed. R Civ. P. 15 calls for amendments to be
freely granted, Plaintiffwill be permitted to amend his complaint as he has stated
he intends." Several of the Defendants contacted the Court and asked for leave to
file an opposition to Plaintiffs Motion to File Second Amended Complaint. They
have now done so but nothing they have presented raises any substantive reason
for overruling the Court's prior ruling.
Wherefore, for all the above reasons, the Court should deny the five Defendant's
Motions in Opposition to his Motion to File Second Amended Com aint
Br Ki erlin
8100 Beech Tree Rd
Bethesda, MD20817
justicejtmp@comcastnet
(301) 320 5921
Case 8:l3-cv-03059-PWG Document ll9 Filed 04/09/l4 Page 6 of 7
Certificate of Service
I certify that I have served this reply on all counsel and Defendant
Stranahan by electronic mail, and on Defendants Hoge,
by USMail this 9
th
day of April 2014.
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