Case 8:13-cv-03059-GJH Document 242 Filed 01/08/15 Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
NATIONAL BLOGGERS CLUB,
et. al.
Defendants.

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Case No. 13-3059 GJH

REPLY BY DEFENDANTS ERICK ERICKSON AND REDSTATE

IN SUPPORT OF MOTION TO DISMISS
Defendants Erick Erickson and RedState respectfully submit this reply in support of their
Motion to Dismiss Pursuant to Rule 12(b)(6) and the Maryland Anti-SLAPP Statute.
INTRODUCTION
Plaintiff Brett Kimberlins response to the motions to dismiss does not identify a single
fact, properly alleged or otherwise, to support the claims he asserts against both Erick Erickson
and RedStatefalse light invasion of privacy (Count VI), intentional interference with
prospective economic advantage (Count VII), intentional infliction of emotional distress (Count
VIII), and conspiracy to commit state law torts (Count IX)or the two additional statutory
claims asserted against Erickson alone: the Racketeer Influences and Corrupt Organizations Act
(RICO) (Count I) and 42 U.S.C. 1985 (the Civil Rights Act of 1871) (Count III). While
Kimberlins claims purportedly arise from three blog posts published by RedState.com and a
CNN interview with Erickson, nothing in the blog posts or the interview forms a legally
cognizable basis for Kimberlins claims, and his opposition to the various motions to dismiss
confirms what was already evident from his Second Amended Complaint (SAC): Kimberlin
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has no concrete factual allegations that establish or even suggest any right of relief against
Erickson or RedState. And just as he has no facts, he also has no law: Kimberlin makes no
attempt to contest the dispositive legal arguments raised by Erickson and RedState in their
motion. Instead, Kimberlins brief offers divergent discussions and irrelevant material.
Whatever the merits of Kimberlins personal grievances against some of the other defendants,
Erickson and RedState are among those who merely exercised their First Amendment right to
report on a public controversy. They do not belong in this case.
ARGUMENT
I.

KIMBERLIN FAILS TO STATE A VIABLE CLAIM FOR RELIEF ON ANY OF

THE SIX COUNTS AGAINST ERICKSON AND REDSTATE.
Kimberlins opposition brief does not even address, let alone oppose, the substantive

legal arguments raised by Erickson and RedState. When a plaintiff fails to address a defendants
legal arguments in support of a motion to dismiss, the plaintiff abandons his claims against that
defendant, and immediate dismissal is proper. E.g., White v. Wal-Mart Stores, Inc., No. ELH14-00031, 2014 WL 1369609, at *2 (D. Md. Apr. 4, 2014) (explaining, in a case brought by a
pro se plaintiff who failed to respond to a motion to dismiss, that the court can only assume that
plaintiff concedes that her Complaint is deficient for the reasons stated by defendant);
Ferdinand-Davenport v. The Childrens Guild, 742 F. Supp. 2d 772, 783 (D. Md. 2010) (finding
that a plaintiff abandoned [a] claim by failing to address a defendants legal arguments as to
that claim); Mentch v. E. Sav. Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997) (dismissing a
claim based solely on a plaintiffs failure to specifically address in her response brief the
defendants legal arguments as to that claim). Here, Kimberlins opposition does not contest the
core substance of Erickson and RedStates motionthat Kimberlin has failed to allege the
requisite elements of his torts claims or to plead any facts about Erickson or RedState that could
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plausibly create liability. Indeed, Kimberlins opposition brief offers only two passing
references to Erickson, and it does not mention RedState at all (aside from the boilerplate
reference in the first paragraph). Kimberlins utter failure to address the legal arguments on the
merits amounts to an abandonment of his claims.
A.

Kimberlin fails to establish that he has adequately pleaded the elements of

his claims.

For the four claims asserted against both Erickson and RedState, Kimberlins opposition
(like the SAC) fails to identify any facts that establish a right to relief above the speculative
level. Mayfield v. Natl Assn for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir.
2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).1 For false light invasion
of privacy, the opposition does not identify any allegedly false statement in any of the
publications by Erickson or RedState, nor does it identify any fact suggesting that either
defendant published anything with actual malicethat is, knowledge of its falsity or substantial
doubts as to its truth.2 This is hardly surprising, of course, as the SAC nowhere makes any such
allegations. And because both a false statement and actual malice are required elements for false
lightregardless of whether the plaintiff is a public figurethe SAC is deficient as a matter of
law. See, e.g., Campbell v. Lyon, 26 F. Appx 183, 188 (4th Cir. 2001) (quoting Bagwell v.
Peninsula Reg. Med. Ctr., 665 A.2d 297, 318 (Md. Ct. Spec. App. 1995)).
1

Throughout this lawsuit, Kimberlin has repeatedly articulated the incorrect pleading standard
by citing Conley v. Gibson, 355 U.S. 41 (1957). Conley, of course, was overruled by Twombly
and Iqbal.
2

The SAC identifies three specific blog posts that were published on RedState.com. See SAC
84, 95. They were published on May 25, 2012, May 27, 2012, and May 29, 2012. Those
three blog posts are attached to Erickson and RedStates Motion to Dismiss as Exhibits A
through C to the Declaration of Mark I. Bailen (July 8, 2014). The SAC also identifies an
interview with Erickson that aired on June 8, 2012. See SAC 85. A video of that interview
(CNN Interview) is available at http://newsroom.blogs.cnn.com/2012/06/08/swatting-prankcould-be-deadly (last accessed Jan. 7, 2015).
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Kimberlins opposition also fails to cure the deficiencies concerning the other three
claims asserted against Erickson and RedState. For intentional infliction of emotional distress,
Kimberin fails to explain how his conclusory allegation that these defendants somehow
disparaged him can support this cause of action given that [d]efamatory conduct in no way
satisfies [the] exacting standards for extreme and outrageous conduct required of emotional
distress claims. Colfield v. Safeway Inc., No. WDQ-12-3544, 2013 WL 5308278, at *8 (D. Md.
Sept. 19, 2013). For tortious interference with prospective economic advantage, Kimberlin has
not identified, with specificity, any future relationship which is likely to occur and which
was allegedly damaged by Erickson or RedState. Baron Fin. Corp. v. Natanzon, 471 F. Supp. 2d
535, 546 (D. Md. 2006). And for conspiracy to commit state law torts, Kimberlin has not
established any independent tortious injury caused by Erickson or RedState, and in any event, it
is improper to plead civil conspiracy in a separate count of a complaint as if it were a cause[] of
action independent of an underlying tort. Alford v. Genesis Healthcare, No. RDB-05-3278,
2007 WL 1073725, at *7 (D. Md. 2007).3
As for the two additional claims against Erickson alone, Kimberlins opposition brief
similarly fails to offer any rebuttal to the showing that the claims are deficient as a matter of law.
For the RICO claim, the opposition brief does not (and cannot) remedy the fact that his SAC is
devoid of any alleged acts by Erickson that could plausibly constitute a pattern of racketeering
3

In support of his claim for intentional infliction of emotional distress, Kimberlins opposition
does cite a 40-year-old non-binding case from Virginia, Womack v. Eldridge, 210 S.E.2d 145
(Va. 1974), but that case involves a wholly different set of facts (a defendant deceptively taking
the plaintiffs photograph and using it in the trial of an alleged child molester), and it has no
bearing on the law in Maryland that emotional distress claims are exceedingly rare. See Taylor
v. Anne Arundel Cnty., Md., No. WDQ-12-2468, 2013 WL 4451221, at *5 (D. Md. Aug. 15,
2013) (explaining that the Maryland Court of Appeals has upheld such claims only four times in
thirty years). On his claims for interference with prospective economic advantage and
conspiracy to commit state torts, Kimberlins opposition brief is utterly silent, and those claims
are thus abandoned. See, e.g., Ferdinand-Davenport, 742 F. Supp. 2d at 783.
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activity. See Hickman v. Obama, No. JKB-13-1284, 2013 WL 2390869, at *1 (D. Md. May 29,
2013). The only acts that that Erickson is alleged to have committed are acts of
constitutionally protected speech, including writing blog posts, speaking in a televised interview,
and communicating with public officials on matters of public concern. And for the claim under
the Civil Rights Act of 1871, Kimberlin does not explain how this claim can stand given his lack
of allegations that Erickson did anything with a racial or perhaps otherwise class-based
invidiously discriminatory animus, which is a threshold requirement for claims under this
statute. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
B.

Kimberlins arguments regarding undifferentiated Defendants do not

concern Erickson and RedState.

On top of its failure to address the dispositive legal arguments, Kimberlins opposition
brief hardly even mentions Erickson or RedState at all. The 50-page, 102-paragraph brief never
discusses RedState, and it references Erickson in just two isolated paragraphs. First, Kimberlin
alleges that several of the Defendantswho tellingly are unnamedenlisted the help of
Erickson and other media figures for the purpose of calling for [Kimberlins] arrest and a bill of
attainder against him and spreading the swatting narrative to a national audience of millions.
Pl.s Response to Mots. to Dismiss (Pl.s Response) 16. But a plain reading of Ericksons
blog posts and his CNN interview demonstrate that he never called for Kimberlins arrest, and he
never accused Kimberlin of swatting.4 Quite the oppositeon CNN, when describing how he
was a victim of a swatting attack, Erickson stated, I dont actually think its him [Kimberlin] . . .

Swatting is the act of calling 911 and falsely reporting a violent crime at the address of a
targeted individual. United States v. Neff, 2013 WL 30650, at *3 (N.D. Tex. Jan. 3, 2013).
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I dont think that its him.5 In the only other mention of Erickson in the opposition brief,
Kimberlin contends that he did not even know Eric [sic] Erickson were [sic] when he was
swatted and he certainly had no idea of his phone numbers or addresses. Pl.s Response 83.
Again, this point is irrelevant because (1) it is not alleged in the SAC and (2) Erickson never
accused Kimberlin of swatting him at all.
Viewed charitably, Kimberlins opposition brief offers conclusory discussions regarding
various undifferentiated defendantsbut these discussions refer to facts that have nothing to do
with Erickson or RedState. For instance, he spends the bulk of his brief asserting that the
Defendants engaged in a vague, vast conspiracy against him through an organization known as
the National Bloggers Club. Id. 27-57, 78, 90. But the SAC does not allege that Erickson or
RedState are affiliated with the National Bloggers Club, nor has Kimberlin ever offered any
concrete facts tying Erickson or RedState to any such conspiracy. Moreover, Kimberlin argues
that [n]one of the Defendants . . . has demonstrated that Kimberlin was involved with
swattings in any way, shape or form. Id. 2. But this argument misses the point: Erickson and
RedState have never claimed that Kimberlin swatted anyone, and procedurally, the question at
this stage is the sufficiency of Kimberlins allegations in the SAC, not the adequacy of the
evidence regarding Kimberlins connection (or lack thereof) to swatting.
Unable to overcome the defects in his SAC, Kimberlin instead attempts to improperly
add new facts into the record by supplementing his opposition brief with fifteen exhibits totaling

CNN Interview, at 3:46 of video. Aside from the three blog posts and the CNN interview, the
SAC also alleges that Erickson and others contacted Members of the House and Senate and
urged them to investigate the issue of swatting. SAC 98. But as Erickson pointed out in his
Motion to Dismiss, the SAC does not identify the alleged letters to Congress, quote their
language, or explain how they could be actionable. Kimberlin again fails to address the issue in
his opposition brief.
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ninety-three pages. As the Court is aware, Kimberlin has already been given leave to amend his
Complaint twice, and upon his most recent series of amendments, the Court admonished him that
in the interest of expediency and protecting Defendants from multiple rounds of briefing, no
further amendments will be permitted after the SAC. Letter Order Dated Feb. 21, 2014 (ECF
No. 88) at 5. Kimberlins lawsuit must therefore stand or fall based solely on the allegations in
the SAC. Even if any of the new exhibits attached to Kimberlins opposition brief contained any
new facts about Erickson or RedState suggesting any right of relief (which they do not), the
Court cannot consider them in ruling on the motion to dismiss.
II.

KIMBERLINS ARGUMENT REGARDING THE STATUTE OF LIMITATIONS

FOR FALSE LIGHT IS INCORRECT, AND HIS FALSE LIGHT CLAIM IS
TIME-BARRED.
The single argument addressed by Kimberlin in his opposition concerns the statute of

limitations for false lightbut Kimberlin misconstrues Maryland precedent. In Maryland, the
statute of limitations for defamation is only one year6 and the Maryland Court of Appeals
recently held that an allegation of false light must meet the same legal standards as an allegation
of defamation. Piscatelli v. Van Smith, 35 A.3d 1140, 1146-47 (Md. 2012). Accordingly, this
Court has applied the one-year period to false light claims, because to do otherwise would
severely undercut the policy considerations which led to the enactment of the one-year statute
governing defamation cases. Smith v. Esquire, Inc., 494 F. Supp. 967, 970 (D. Md. 1980).
Kimberlin claims that Marylands highest Court rejected the reasoning of Smith, and he
cites Allen v. Bethlehem Steel Corp., 547 A.2d 1105, 1108 (Md. Ct. Spec. App. 1988). Pl.s
Response 26. That is incorrect. Allen (as Erickson and RedState noted in their motion to
dismiss) was a lower court decision, not a decision of Marylands highest Court, and it is not

Md. Code Ann., Cts. & Jud. Proc. 5-105 (West 2013).
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binding in federal court. See, e.g., Sanderson v. Rice, 777 F.2d 902, 905 (4th Cir. 1985) ([O]nly
the highest court of the state can determine in a binding fashion the rule of state law. . . . An
opinion of an intermediate appellate court is persuasive in situations where the highest state court
has not spoken but does not prevail where the federal court is convinced that the highest court of
the state would rule to the contrary.).
The Maryland Court of Appeals apparently has never ruled on the applicable limitations
period for false light claims, but given its recent statement in Piscatelli that false light and
defamation are subject to the same standards, it would likely rule in concert with Smith and apply
the one-year limitations period to false light claims. This Court, therefore, should follow Smith
(and Piscatelli) and hold that all three RedState articles (which were published in May 2012) as
well as Ericksons CNN interview (which was broadcast in June 2012) are not subject to the
false light claim because they were published more than a year before Kimberlin filed this
lawsuit on October 15, 2013.
III.

KIMBERLIN FAILS TO REBUT THE ARGUMENTS THAT DISMISSAL IS

PROPER UNDER MARYLANDS ANTI-SLAPP STATUTE.
The Maryland Anti-SLAPP statutewhich is intended to terminate promptly bad-faith

lawsuits that inhibit the exercise of First Amendment rightsprovides another avenue for
dismissal of this action. See Md. Code Ann., Cts. & Jud. Proc. 5-807(b) and (d)(1).
Kimberlins opposition brief further demonstrates the vexatious, bad-faith nature of this lawsuit.
As noted above, Kimberlin has persisted in litigating a case against Erickson and RedState
founded on scant allegations and a dearth of facts, and rather than addressing these deficiencies
directly, he has offered lengthy and irrelevant distractions. He attacks reputable journalists using
weapons such as the federal racketeering statute, an 1871 civil rights statute premised on racial
animus, and time-barred claims for defamation and false light.
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Although Kimberlin asserts that he is not trying to silence anyone, Pl.s Response 89,
his manner of litigating this lawsuit tells a different story. He has sued over blog posts that
demonstrably do not accuse Kimberlin of swatting or disparage him in any way, yet his suit
forces Erickson and RedState to incur the expense of navigating his meandering filings in order
to defend themselves. His opposition brief includes gratuitous ad hominen attacks on the
integrity of counsel for Erickson and RedState (among other defendants counsel) for defending
his clients in this case. Id. 24 n.2. The lawsuit is nothing more than a naked attempt to chill
the speech of political commentators who hold views that Kimberlin apparently disagrees with.
Dismissal is warranted under the Anti-SLAPP Statute as well as Rule 12(b)(6), and RedState and
Erickson are entitled to attorneys fees and costs under the Courts power to sanction parties who
litigate in bad faith, vexatiously, wantonly, and for oppressive reasons. Moreno v. PF Hurley,
Inc., Civ. No. RWT-07-1515, 2009 WL 3208324, at *2 (D. Md. Sept. 29, 2009).
CONCLUSION
Erickson and RedState should not be defendants in this case; they merely reported and
commented on a public controversy, and as Kimberlins opposition brief demonstrates, there is
no legitimate claim against them. Accordingly, for the foregoing reasons and the reasons set
forth in their Motion to Dismiss, Erick Erickson and RedState respectfully request that this Court

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dismiss all counts of Kimberlins Second Amended Complaint against them, award them their
reasonable attorneys fees and costs, and grant any other such relief as the Court deems proper.
Respectfully submitted,
BAKER & HOSTETLER LLP
By:

/s/ Mark I. Bailen_________

Mark I. Bailen (13805)
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Tel: 202-861-1500
Fax: 202-861-1783
mbailen@bakerlaw.com
Counsel for Defendants Redstate and
Erick Erickson

CERTIFICATES OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via ECF
on January 8, 2015;
I FURTHER CERTIFY that a true and correct copy of the foregoing was served via
electronic mail, this 8th day of January, 2015, on the following persons with their consent:
William Hoge, Robert S. McCain, and Aaron Walker;
I FURTHER CERTIFY that a true and correct copy of the foregoing was mailed via firstclass mail, postage prepaid, this 8th day of January, 2015 to:
Brett Kimberlin
8100 Beech Tree Road
Bethesda, MD 20817
Lee Stranahan
13824 Methuen Green St.
Dallas, TX 75240
/s/ Mark I. Bailen

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