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NO. 15-1412

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT
_________
BRETT C. KIMBERLIN,
Appellant,
V.

NATIONAL BLOGGERS CLUB, ET AL.,


Appellees.

_________
Appeal From The United States District Court
For The District Of Maryland
Southern Division
_________
INFORMAL RESPONSE BRIEF OF APPELLEES
MERCURY RADIO ARTS, THE BLAZE INC., AND GLENN BECK
_________
Eleanor M. Lackman, Esq.
Scott J. Sholder, Esq.
Cowan, DeBaets, Abrahams & Sheppard
LLP
41 Madison Ave., 34th Floor
New York, New York 10010
elackman@cdas.com
ssholder@cdas.com

Mark I. Bailen, Esq.


Baker & Hostetler LLP
Washington Square
Suite 1100
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
MBailen@bakerlaw.com

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Appellees Mercury Radio Arts, The Blaze Inc., and Glenn Beck (collectively
Appellees) submit this Informal Response to appellant Brett Kimberlins
(Kimberlin) informal Lead Brief dated May 15, 2015 (and filed May 21, 2015)
(App. Br.), in accordance with this Courts Local Rule 34(b).
As a threshold matter, this Court does not appear to have jurisdiction to hear
this appeal. First, the judgment of the district court below is not a final
decision[] under 28 U.S.C. 1291. Ordinarily, a district court order is not final
until it has resolved all claims as to all parties. Fox v. Balt. City Police Dept., 201
F.3d 526, 530 (4th Cir. 2000). Here, the district court did not dismiss the 42
U.S.C. 1983 claim against defendant Patrick Frey [see Dist. Ct. Dkt. No. 264],
and therefore the district courts order is not a final resolution of all claims as to all
parties. In addition, Kimberlin is not entitled to an interlocutory appeal because
the scenarios enumerated in 28 U.S.C. 1292(a) are not present and because the
district court did not certify a controlling question of law as to which there is
substantial ground for difference of opinion requiring an immediate appeal under
1292(b). Appellees join in, and incorporate by reference, the other jurisdictional
arguments set forth in the Informal Response Briefs of appellees Aaron Walker
and William Hoge. [See 4th Cir. Dkt. No. 25 at 2-6 & No. 27 at 2-3.]
Even if this Court does have jurisdiction on this appeal, it should affirm the
district courts order because Kimberlins case hinges on distortion of basic federal
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pleading standards and mischaracterization of the proceedings below. Despite the


leniency afforded him due to his pro se status, and despite two chances to amend
his complaint, Kimberlin simply could not state plausible claims under the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961,
et seq., and the Ku Klux Klan Act (KKK Act), 42 U.S.C. 1985. Kimberlin, not
the district court, is responsible for his inability to maintain his claims.
I.

KIMBERLINS PRO SE STATUS DOES NOT RELIEVE HIM


FROM SATISFYING WELL-ESTABLISHED FEDERAL
PLEADING STANDARDS
Kimberlin erroneously believes that because he is self-represented he does

not have to abide by the federal pleading standards set forth by the Supreme Court
in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009). Instead, Kimberlin relies heavily on pre-Twombly case law and the
general proposition that complaints of pro se plaintiffs are held to less stringent
standards than formal pleadings drafted by lawyers.1 (App. Br. at 6.) Kimberlin
mixes concepts and misses the point: the federal courts traditional leniency for
pro se parties is an exception that does not swallow the general rules of pleading.
The case law is clear that while a pro se litigants complaint is provided leeway for
inartful pleading, liberal construction does not absolve [a pro se] Plaintiff from
pleading a plausible claim. Bey v. Shapiro Brown & Alt, LLP, 997 F. Supp. 2d
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Kimberlins reliance on Conley v. Gibson, 355 U.S. 41 (1957), is also misguided


because that case was abrogated by Twombly.
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310, 314 (D. Md. 2014), affd, 584 F. Appx 135 (4th Cir. 2014). See also
Coulibaly v. J.P. Morgan Chase Bank, N.A., No. DKC 103517, 2011 WL
3476994, at *6 (D. Md. Aug. 8, 2011) ([E]ven when pro se litigants are involved,
the court cannot ignore a clear failure to allege facts that support a viable claim.),
affd, 526 F. Appx 255 (4th Cir. 2013).2
Further, the policies behind liberal construction of pro se complaints are not
applicable to this particular pro se litigant. Kimberlin is an experienced litigant
and litigator and arguably is not even entitled to the leniency afforded to selfrepresented parties. Courts of this circuit and others have applied a sliding scale
of liberality in construing a pro se complaint. Where a person has filed numerous
suits, and has received guidance from the Court in a previous suit, that person is
not entitled to as liberal treatment as one who has not been so instructed. Holsey
v. Bass, 519 F. Supp. 395, 407 n.27 (D. Md. 1981) (internal citations omitted). See
also Muniz v. Goord, No. 9:04-CV-0479, 2007 WL 2027912, at *6 n.30 (N.D.N.Y.
July 11, 2007) (also applying a sliding scale). The experienced pro se litigator
should be held to a higher standard than the novice, and where, for instance, a pro
se plaintiff is no stranger to court proceedings or has spent more time in court
2

To the extent Kimberlin believes a more lenient pleading standard applies


specifically to pro se civil rights complaints (App. Br. at 1), Appellees note that
this argument fails at least with regard to the RICO claim, which is not a civil
rights claim.
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than many lawyers he should not be permitted to appear before a court wearing
the cloak of a pro se applicant seeking the solicitude ordinarily afforded one
appearing without counsel. Holsey, 519 F. Supp. at 407 n.27 (citations omitted).
Here, Kimberlin has been described by other courts as no stranger to the
processes of litigation. See Kimberlin v. Anonymous Blogger Unmasked, No.
CIV.A. RWT-13-2580, 2014 WL 824142, at *1 (D. Md. Feb. 28, 2014). Public
court records indicate that Kimberlin has been a party to over 100 legal actions in
Maryland state and various federal courts, and has been the plaintiff in nearly half
of those cases, including in 25 federal cases.3 Although he has ultimately been
unsuccessful, Kimberlin has nonetheless shown the ability to present his
multifarious claims in a sophisticated manner, Holsey, 519 F. Supp. at 407 n.27,
and cannot expect this Court to believe that he should be accorded special
treatment when he undoubtedly knows his way around the courtroom and has more
litigation experience than many licensed attorneys.

See PACER Case Locator, PUBLIC ACCESS TO COURT ELECTRONIC RECORDS,


https://pcl.uscourts.gov/search (last visited May 27, 2015) & Maryland Judiciary
Case Search, MARYLAND COURTS,
http://casesearch.courts.state.md.us/casesearch/processDisclaimer.jis (last visited
May 27, 2015) (search Party Name for Kimberlin, Brett).
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II.

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THE DISTRICT COURT DID NOT HOLD KIMBERLIN TO AN


ELEVATED PLEADING STANDARD; HIS COMPLAINT WAS
FATALLY DEFICIENT
Merely identifying a cause of action does not lead to the conclusion that a

claim has been stated. However, Kimberlin erroneously believes that a Federal
Rule 12(b)(6) motion should only be granted if the Complaint is patently
frivolous (App. Br. at 6), and that simply naming a claim is sufficient to actually
state one and open the door to discovery. (See id. at 3.) According to Kimberlin,
requiring anything beyond this bare minimum constitutes an improperly
heightened pleading burden, and the district court therefore expected too much
from him. (See id. at 8.) Kimberlins theories regarding pleading standards are not
remotely viable and his portrayal of the opinion below is demonstrably false.
Federal Rule 8 requires more than mere notice and certainly more than
lack of frivolity to state a claim for relief. Kimberlins specious arguments
represent a desperate attempt to revive his case so he can embark on a fishing
expedition in discovery against Appellees in order to substantiate his claims post
hoc. (See App. Br. at 1, 2, 5, 6, 8, & 9 (noting that Kimberlins case was dismissed
prior to discovery).) This is a wholly improper use of the federal court system.
See Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015) (This Court
affirmed the district courts ruling that the plaintiffs argument suggests only a

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desire to conduct a fishing expedition to determine if there is any factual basis for
asserting claims against any Defendants. . . . This is not enough.).
Kimberlin is not only wrong on the law, but he grossly misrepresents the
district courts application of the proper pleading standards. In his Opening Brief,
Kimberlin states that the lower court applied heightened pleading standards to the
Complaint as if it were a Motion for Summary Judgment (or trial). (App. Br. at
7.) Nowhere in its opinion does the district court reference the summary judgment
standard under Federal Rule 56, much less a trial standard. Indeed, the only tests
the court mentions are the Supreme Courts pleading standards under Twombly and
Iqbal and the familiar heightened pleading burden required for fraud-based claims
under Federal Rule 9, including for fraud-based RICO predicate acts. See
Kimberlin v. Natl Bloggers Club, No. GJH-13-3059, 2015 WL 1242763, at *2, *4
(D. Md. Mar. 17, 2015).
And, contrary to Kimberlins puzzling and unsupported assertion that the
district court admitted that the complaint was plausible enough to give the
defendants notice of the claims (App. Br. at 8), the court held just the opposite,
noting that Kimberlins complaint incurably failed to satisfy the Twombly
plausibility standard as to any of the elements of his federal claims even on his
third attempt. For instance, with regard to the RICO claim, Kimberlin contends he
pleaded that the defendants violated RICO by creating an association-in-fact
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enterprise with a specific structure and engaged in numerous RICO predicate acts.
(Id. at 3.) But the district court specifically explained that, among other fatal
deficiencies in the compliant, Kimberlin failed to plead the existence of a RICO
enterprise because he did not allege any material facts about the enterprises
structure nor did he allege[] how the RICO Defendants are associated within the
enterprise, and separately, he failed to set forth any facts that could plausibly
establish any RICO predicate acts. Kimberlin, 2015 WL 1242763, at *4-9.
Moreover, Kimberlin never actually argued below that any of the Appellees
was involved in the alleged RICO conspiracy. His position is no different before
this Court. Kimberlin fixates on defendants Akbar and National Bloggers Club,
and identifies no basis why the district court should have held that he pled any
material facts relating to the involvement of Mercury Radio Arts, The Blaze Inc.,
or Glenn Beck, in this supposed conspiracy.
Kimberlin also argues that he stated a claim under the KKK Act because
some unspecified defendants purportedly conspired to deprive him of his civil
rights through discriminatory animus and by using threats and intimidation to
deter [him] from testifying before and cooperating with federal proceedings.
(App. Br. at 3.) But the district courts opinion was perfectly clear regarding
Kimberlins inability to state a plausible claim under the KKK Act. The court
explained that Kimberlin did not allege he is a member of a protected race or class,
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and that his political views, as a matter of law, do not qualify him for protection
under the statute. See Kimberlin, 2015 WL 1242763, at *17. Moreover, Kimberlin
failed to allege any acts relating to a federal judicial proceeding, see id. at *6, as
required by 1985(2).
III.

RELIEF REQUESTED

For the reasons stated herein, Appellees respectfully request that this Court
dismiss Kimberlins appeal.
Dated:

New York, New York


June 1, 2015

Respectfully submitted,
COWAN DeBAETS ABRAHAMS
& SHEPPARD LLP
By: /s/ Eleanor M. Lackman
.
Eleanor M. Lackman
Scott J. Sholder
41 Madison Avenue, 34th Floor
New York, New York 10010
Tel: (212) 974-7474
Fax: (212) 974-8474
ELackman@cdas.com
SSholder@cdas.com
Mark I. Bailen
BAKER & HOSTETLER LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Tel: (202) 861-1500
Fax: (202) 861-1763
MBailen@bakerlaw.com
Attorneys for Appellees The Blaze Inc.,
Mercury Radio Arts, and Glenn Beck
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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure,
the foregoing brief is in 14-Point Times Roman proportional font and contains
1,880 words and thus is in compliance with the type-volume limitation set forth in
Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure.
Dated: June 1, 2015
/s/ Eleanor M. Lackman
Eleanor M. Lackman
Attorneys for Appellees The Blaze Inc.,
Mercury Radio Arts, and Glenn Beck

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 1, 2015 the foregoing document was
served on all parties or their counsel of record through the CM/ECF system if they
are registered users, and by serving a true and correct copy via electronic mail to
Aaron Walker, Robert S. McCain, William Hoge, and Lee Stranahan; and by first
class mail, postage prepaid, to Brett Kimberlin 8100 Beech Tree Road, Bethesda,
MD 20817.
Dated: June 1, 2015
/s/ Eleanor M. Lackman
Eleanor M. Lackman
Attorneys for Appellees The Blaze Inc.,
Mercury Radio Arts, and Glenn Beck
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