UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

GREENBELT DIVISION


BRETT KIMBERLIN, )
)
Plaintiff, )
)
v. ) Case No. PWG 13 3059
)
NATIONAL BLOGGERS CLUB, )
Et. al. )
)
Defendants. )

DEFENDANT DB CAPITOL STRATEGIES, PLLCS OPPOSITION TO PLAINTIFFS
MOTION TO FILE SECOND AMENDED COMPLAINT

Comes now, Defendant DB Capitol Strategies, PLLC (hereinafter !DBCS"), by and through
counsel, hereby opposes Plaintiff Brett Kimberlin#s (hereinafter !Plaintiff") Motion to File Amended
Complaint for the reasons stated herein. On March 7, 2014, Plaintiff filed his Motion to File Second
Amended Complaint, in which he seeks to join three additional defendants and alleges additional claims
of false light invasion of privacy, interference with business relationships, interference with prospective
advantage, conspiracy, and battery. See Pl.#s Mot. to File Second Am. Compl. at 5, ECF No. 100-1.
Plaintiff#s Motion to File Second Amended Complaint (hereinafter !Motion to Amend") should
be denied for two reasons. First, further amendment would be wholly futile because the proposed
amendments fail to cure deficiencies in his previous amendment and would not withstand a motion to
dismiss. Second, it would result in undue prejudice to DBCS.
PRELIMINARY MATTER
Before addressing the substance of DBCS#s Opposition, DBCS, through its sole member Dan
Backer, filed its (Consent) Emergency Motion for Extension of Time to Respond to Plaintiff#s Motion to
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Amend (ECF No. 100) on March 28, 2014 (hereinafter !(Consent) Emergency Motion"). ECF No. 117.
Undersigned counsel was emergently admitted to the hospital on Thursday, March 27, 2014 and was
unable to file an Opposition on DBCS#behalf by the agreed upon deadline of March 28, 2014. While this
Court has not yet ruled upon this (Consent) Emergency Motion, the agreed upon deadline between Plaintiff
and DBCS for DBCS#Opposition is March 31, 2014. Thus, DBCS files this Opposition in accordance
with that agreement while awaiting a ruling from this Court.
BACKGROUND
The First Amended Complaint (hereinafter !FAC") is 50 pages long and contains 214 paragraphs.
Pl.#s Am. Compl., ECF No. 2. Thirteen defendants have filed Motions to Dismiss as a result of the FAC.
ECF Nos. 5, 8, 11, 16, 41, 50, 83 and 87. On February 21, 2014, this Court allowed Plaintiff to seek leave
to amend his FAC. Letter Order, ECF No. 88. In doing so, this Court advised Plaintiff that this would be
his last opportunity to amend, and that failure to comply with Local Rule 103.6 would result in Plaintiff#s
Motion to Amend being denied by the Clerk. Id. at 5.
Plaintiff filed his Motion to Amend on March 7, 2014 and attached copies of his proposed Second
Amended Complaint (hereinafter !SAC"). The SAC, instead of clarifying the allegations of the FAC,
exacerbates both the redundancy and convolution of the FAC. The SAC is 82 pages and 285 paragraphs
long, names three new defendants, and adds entirely new theories of the case, unsupported statements
alleged as facts, and causes of action not present in the FAC. Further, Plaintiff does little to remove
!redundant, immaterial, impertinent, or scandalous matter"from the text, as had been ordered by this
Court. See Case Management Order at B.12, ECF No. 97. Indeed, Plaintiff#s SAC contains multiple
paragraphs which are immaterial and irrelevant to his alleged causes of action against the defendants. See,
for example, Plaintiff#s SAC, at 33-37.
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Additionally, the SAC fails to comply with the requirements of Local Rule 103.6(c), which
Plaintiff was expressly told to follow by this Court. See Letter Order, ECF No. 88, at 5. L.R. 103.6(c)
requires that one copy contain lined-through, stricken material (or, alternatively enclosed in brackets),
while newly included material is required to be underlined or in bold-faced type. In addition to the failures
articulated below, Plaintiff#s blatant disregard for the requirements of Local Rule 103.6 are well-briefed
by the Motions in Opposition filed by the other defendants in this matter. See Def. Walker#s Opposition
to Pl.#s Mot. to File Second Am. Compl. at 2-5, ECF No. 115; Def. Hoge#s Opposition to Pl.#s Mot. to
File Second Am. Compl. at 1-4, ECF No. 114; Mem. of Defs. Malkin and Twitchy in Opposition to Pl.#s
Mot. to File Second Am. Compl. at 2-3, ECF No. 111. This Court explicitly directed Plaintiff to adhere
to the strictures of Local Rule 103.6 in submitting his proposed amended pleading. Letter Order, ECF No.
88, at 5. The purpose of Rule 103.6#s redline requirement will have been wholly upended if each defendant
is required to go through both the 50-page FAC and the 82-page SAC in order to ascertain what has been
added and/or removed. The Rule places the burden on the movant to clearly indicate the changes being
sought in the amendment and, here, Plaintiff failed to meet this burden.
ARGUMENT
Rule 15(a) calls for amendment where !justice requires", but an amendment should be denied
when the actions of the plaintiff demonstrate the following: !undue delay, bad faith, dilatory motive[],
repeated failure to cure deficiencies by amendments previously allowed, and undue prejudice to the
opposing party". Foman v. Davis, 371 U.S. 178, 182 (1962); see Bennett v. Damascus Cmty. Bank, 2006
Md. Cir. Ct. LEXIS 14, *10 (Md. Cir. Ct. April 6, 2006). Additionally, "leave to amend need not be
given" under Rule 15 if it would be futile to do so; where, for example !a complaint, as amended, is subject
to dismissal." Dep't of Fair Empl. & Hous. v. Law Sch. Admission Council Inc., 2013 U.S. Dist. LEXIS
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16942 at *20 (N.D. Cal. Feb. 6, 2013) (quoting Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538
(9th Cir. 1989)). Fed. R. Civ. P. 15. For the reasons described below, Plaintiff#s Motion to Amend should
be denied.
A. Further Amendment to Plaintiffs First Amended Complaint Would Be Futile

i. Further Amendment to Plaintiffs First Amended Complaint Would Violate
FRCP Rule 8

!To withstand a motion to dismiss, the complaint need only satisfy the $simplified pleading
standard#of Rule 8(a), which requires a !short plain statement of the claim showing that the pleader is
entitled to relief." Swierkiewicz v. Sroema N.A., 534 U.S. 506, 513, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002);
Cuffee v. Verizon Communications, Inc., 755 F. Supp. 2d 672, 677 (D. Md. 2010). The goal of the rule is
to avoid complaints !so verbose that the Court cannot identify . . . the claims of the pleader and adjudicate
them . . . on the merits." Harrell v. Directors of Bureau of Narcotics and Dangerous Drugs, 70 F.R.D.
444, 446 (E.D. Tenn. 1975); see Holsey v. Collins, 90 F.R.D. 646 (D. Md. 1981) (where the plaintiff#s
motion to amend complaint was denied for failure to conform to the court#s orders). Plaintiff#s SAC is
not a short and plain statement of the claim; it adds thirty-two pages to an already lengthy FAC.
Furthermore, the unnecessary verbosity and blatant disregard for organization make it difficult, if not
impossible, for both defendants and this Court to identify and adjudicate the claims it purports to add. The
SAC is subject to dismissal under a plain application of these standards, and Plaintiff#s Motion to Amend
should be denied for futility.
ii. Plaintiffs Second Amended Complaint Does Not Cure the Defects Present in
the First Amended Complaint

"Leave to amend need not be given" under Rule 15 if it would be futile to do so. Fed. R. Civ. P.
15. An example of such a situation would be "if a complaint, as amended, is subject to dismissal." Dep't
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of Fair Empl. & Hous. v. Law Sch. Admission Council Inc., 2013 U.S. Dist. LEXIS 16942 at *20 (N.D.
Cal. Feb. 6, 2013) (quoting Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989)).
"[A] proposed amendment is futile only if no set of facts can be proved under the amendment to the
pleadings that would constitute a valid and sufficient claim or defense." Dept of Fair Empl. & Hous. at
*20 (quoting Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).
In Huszar v. Zeleny, plaintiff, acting pro se, commenced a lawsuit against four defendants alleging
both fraud and the deprivation of both constitutional and civil rights. Huszar v. Zeleny, 269 F. Supp 2d
98, 106 (E.D. N.Y. 2003). After two separate motions to dismiss were filed, the plaintiff filed an amended
complaint, which added two additional defendants, a RICO claim and a request for injunctive relief. Id.
The court concluded that, even under the most liberal reading of the plaintiff#s amended complaint, it was
devoid of any viable cause of action. Id. at 105. The court noted that the plaintiff failed, in his amended
complaint, to elaborate on how defendants were engaged in a RICO scheme. Id. Similarly, the plaintiff#s
claim of fraud only contained conclusory allegations even after the plaintiff amended his complaint. Id.
Despite the plaintiff#s pro se status, the court noted that he had ample opportunity to save his suit by filing
an amended complaint after defendants filed their initial motions to dismiss. Id. at 106. The court held
that any further attempt to amend the plaintiff#s case would be futile, and futility !is a valid reason for
denying a motion to amend." Id.
Here, Plaintiff#s attempt to rescue his case by filing his SAC is futile. Plaintiff, who is also a pro
se litigant, should not be !exempt . . . from compliance with relevant rules of procedural and substantive
case law." Id. at 103 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As in Huszar, Plaintiff
failed to allege how DBCS was engaged in !racketeering activity"or how DBCS participated in an
!enterprise". Plaintiff further failed to explain why particular statements made by DBCS were fraudulent,
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and, similar to Huszer, relies on conclusory statements to support this allegation. As such, Plaintiff failed
to articulate viable causes of action under the most generous reading of his SAC. As such, further
amendment would be futile and his Motion to Amend should be denied.
In Alexander v. Wash. Gas Light Co., the plaintiff attempted to file a second amended complaint
after the defendants#filed their motion to dismiss. Alexander, 481 F. Supp. 2d 16, 33 (D.D.C. 2006). The
court construed this attempt as dilatory because plaintiff merely sought to elaborate on claims he had
already asserted. Id. at 40. The court also articulated that the amendments plaintiff made to his original
complaint failed to change the sufficiency of his claims and would not survive a 12(b)(6) motion to
dismiss. Id.
As in Alexander, the instant case demonstrates that, while Plaintiff attempts to add new claims,
these additional claims are just as insufficient as those articulated in the FAC. Here, Plaintiff employs
similar dilatory tactics by introducing new parties and new claims, but he fails to plead these claims with
the particularity required by Bell Atl. Corp. v. Twombly. See Bell Atl. Corp, 550 U.S. 544, 555 (2007)
quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (A plaintiff#s complaint must contain !% a short and
plain statement of a claim showing that the pleader is entitled to relief, in order to give a defendant fair
notice of what the claim is and the grounds upon which it rest."). DBCS has already briefed this Court on
the plethora of legal deficiencies in the FAC in its pending Motion to Dismiss and subsequent Reply to
Plaintiff#s Response to Motion to Dismiss (hereinafter !Reply"). See ECF Nos. 8 and 62. The failures
and deficiencies of Plaintiff#s FAC, even though outlined point by point in DBCS#Motion to Dismiss and
subsequent Reply, remain in Plaintiff#s SAC. In the interest of brevity, below is an example of some of
the failures in Plaintiff#s SAC:
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Plaintiff fails to allege sufficient facts to show conduct, an enterprise, and racketeering activity
under 18 U.S.C. 1962(c)-(d). See Def. DBCS Mot. Dismiss, ECF No. 8, at 2-3; Pl.#s Mot. First
Am. Compl., ECF No. 48, at 76-78.
Plaintiff fails to state a claim under 42 U.S.C. 1985(2). See Def. DBCS Mot. Dismiss, ECF No.
8, at 4-5; Pl.#s Mot. First Am. Compl., ECF No. 48, at 162-66.
Plaintiff fails to state a claim under 42 U.S.C. 1985(3). See Def. DBCS Mot. Dismiss, ECF No.
8, at 5-6; Pl. Mot. First Am. Compl., ECF No. 48, at 162-66.
Plaintiff fails to state a claim for Fraud and Negligent Misrepresentation. See Def. DBCS Mot.
Dismiss, ECF No. 8, at 6-7; Pl. Mot. First Am. Compl., ECF No. 48, at 76-78.
Plaintiff fails to state a claim for Defamation. See Def. DBCS Mot. Dismiss, ECF No. 8, at 7-10;
Pl. Mot. First Am. Compl., ECF No. 48, at 76-78.
Plaintiff fails to state a claim for False Light Invasion of Privacy. See Def. DBCS Mot. Dismiss,
ECF No. 8, at 10-11; Pl. Mot. First Am. Compl., ECF No. 48, at 197-207.
Plaintiff fails to state a claim for Intentional Infliction of Emotional Distress. See Def. DBCS Mot.
Dismiss, ECF No. 8, at 11-12; Pl. Mot. First Am. Compl. , ECF No. 48, at 76-78.
Plaintiff#s SAC fails to rectify the deficiencies in his FAC. As such, Plaintiff#s Motion to Amend
should be denied.

B. Granting Plaintiffs Motion for Leave to File Second Amended Complaint Would
Substantially Prejudice DBCS

!Whether an amendment is prejudicial will often be determined by the nature of the amendment
and its timing." Mayfield v. NASCAR, 674 F.3d 369, 370 (4th Cir. 2012), citing Laber v. Harvey, 438
F.3d 404, 427 (4th Cir. 2006). The instant case involves a clear risk of undue prejudice to DBCS as this
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Court itself considered might occur. See Letter Order, ECF No. 88, at 5. Here, service will need to be
perfected on three new defendants. This will impose additional delays and costs on this Court and all
parties. Further, DBCS, and many of the other defendants, have filed Motions to Dismiss the FAC and
its Motion is ripe for ruling by the Court. Almost all of the grounds articulated in DBCS#original Motion
to Dismiss are still applicable and would have to be reasserted in a second Motion to Dismiss. The
allegations contained in Plaintiff#s SAC are just as vague and meandering as those contained in the FAC.
Additionally, the delays and costs that would be incurred in reading all of the other Motions to Dismiss
that will inevitably be filed by the other defendants and the corresponding Oppositions and Replies would
require a tremendous amount of time and impose significant burdens on DBCS. Plaintiff#s Motion to
Amend should be denied.

CONCLUSION
For the foregoing reasons, DB Capitol Strategies asks the Court to deny Plaintiff#s Motion File
Second Amended Complaint.

Respectfully submitted,

_/s/_______________________________
Caitlin Parry Contestable
717 King Street Ste 300
Alexandria, Virginia 22314
(727) 644-2957
(202) 478-0750
Caitlin@dbcapitolstrategies.com
Bar No. 18826

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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION


BRETT KIMBERLIN, )
)
Plaintiff, )
)
v. ) Case No. PWG 13 3059
)
NATIONAL BLOGGERS CLUB, )
Et. al. )
)
Defendants. )

PROPOSED ORDER

For the reasons set out in Defendant DB Capitol Strategies PLLC#s Opposition to Plaintiff#s
Motion to File Second Amended Complaint, it is this ____ day of _________, 2014, by the U.S. District
Court for the District of Maryland, Greenbelt Division,
ORDERED that the Motion in Opposition be, and hereby is, GRANTED.

_________________________
Paul W. Grimm
United States District Judge
U.S. District Court
for the District of Maryland,
Greenbelt Division









Case 8:l3-cv-03059-PWG Document ll8 Filed 03/3l/l4 Page 9 of l0
*+

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of Defendant DB Capitol Strategies, PLLC#s
Opposition to Plaintiff#s Motion to File Second Amended Complaint and Proposed Order was served with
consent, via electronic mail, this 31
st
day of March, 2014, to:

National Bloggers Club
Ali Akbar
Aaron Walker
William Hoge
Robert Stacy McCain
KimberlinUnmasked
Brett Kimberlin
Lee Stranahan


I FURTHER CERTIFY that a true and correct copy of Defendant DB Capitol Strategies, PLLC#s
Opposition to Plaintiff#s Motion to File Second Amended Complaint and Proposed Order was served via
ECF this 31
st
day of March, 2014, to:

Mark I Bailen
Michael F Smith
Eleanor M Lackman
Benjamin D Light
Linda S Mericle
Theodore Bruce Godfrey
Ronald D. Coleman
David Robert Rocah
Paul Allen Levy


_/s/_______________________________
Caitlin Parry Contestable
717 King Street Ste 300
Alexandria, Virginia 22314
(727) 644-2957
(202) 478-0750
Caitlin@dbcapitolstrategies.com
Bar No. 18826


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