Case 8:13-cv-03059-GJH Document 243 Filed 01/08/15 Page 1 of 9

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 DEFENDANT BREITBART.COM IN SUPPORT OF MOTION TO DISMISS

Defendant Breitbart.com respectfully submits this reply in support of its Motion to
Dismiss Pursuant to Rules 4(m), 12(b)(5), and 12(b)(6), and the Maryland Anti-SLAPP Statute.
INTRODUCTION
Plaintiff Brett Kimberlins response to the motions to dismiss does not identify a single
factproperly alleged or otherwiseto support his four claims against Breitbart.com: (1) false
light invasion of privacy (Count VI); (2) intentional interference with prospective economic
advantage (Count VII); (3) intentional infliction of emotional distress (Count VIII); and (4)
conspiracy to commit state law torts (Count IX). While those claims purportedly arise from four
news and opinion articles posted on Breitbart.com, nothing in the articles 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
has no concrete factual allegations that establish or even suggest any right of relief against
Breitbart.com. And just as he has no facts, he also has no law: Kimberlin makes no attempt to
contest the dispositive legal arguments raised by Breitbart.com in its motion. Instead, his brief

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offers divergent discussions and irrelevant material. Whatever the merits of Kimberlins
personal grievances against any other defendants, Breitbart.com merely exercised its First
Amendment right to report and comment on a public controversy. To survive a motion to
dismiss, a plaintiff must point to facts that raise a right of 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)). Kimberlin does not even come
close.
ARGUMENT
I.

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

HIS FOUR COUNTS AGAINST BREITBART.COM.
Kimberlins opposition brief does not even address, let alone oppose, the substantive

legal arguments raised by Breitbart.com. 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 Breitbart.coms motionthat Kimberlin has failed to allege the requisite
elements of his torts claims and to plead any facts about Breitbart.com that could plausibly create
2

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liability. Kimberlins utter failure to address these points in his brief amounts to an abandonment
of his claim.
Specifically, for the four claims asserted against Breitbart.com, Kimberlins opposition
(like the SAC) fails to identify any facts that would allow his case to survive dismissal under
Twombly and Iqbal.1 For false light invasion of privacy, the opposition does not identify any
allegedly false statement in any of the four articles published on Breitbart.com,2 nor does it
identify any fact suggesting that Breitbart.com published anything with actual malicethat is,
knowledge of its falsity or substantial doubts as to its truth. 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)).
Kimberlins opposition similarly fails to cure the deficiencies concerning the other three
claims asserted against Breitbart.com: For intentional infliction of emotional distress, Kimberlin
fails to explain how his conclusory allegation that Breitbart.com 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

1
Throughout this lawsuit, Kimberlin has repeatedly articulated an obsolete pleading standard by
citing Conley v. Gibson, 355 U.S. 41 (1957). Conley, of course, was overruled by Twombly and
Iqbalbut even under the laxer standard of Conley, Kimberlins case would still easily fail.
2

The SAC identifies four articles published on Breitbart.com. See SAC 38, 83, 93,
111. They were published on the following dates: October 11, 2010; June 8, 2012; June 25,
2012; and November 8, 2012. The articles are attached to Breitbart.coms Motion to Dismiss as
Exhibits A through D to the Declaration of Mark I. Bailen (Aug. 14, 2014).
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tortious interference with prospective economic advantage, Kimberlin has not identified, with
specificity, any future relationship which is likely to occur and which was damaged by
Breitbart.com. 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 Breitbart.com, 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
On top of its failure to address the dispositive legal arguments, Kimberlins opposition
brief mirrors the paltry allegations against Breitbart.com in the SAC by hardly even mentioning
Breitbart.com at all. Aside from the boilerplate language in the first paragraph, the 50-page,
102-paragraph brief contains just three cursory mentions of Breitbart.com in three isolated
paragraphs.4 First, Kimberlin alleges that the deceased founder of Breitbart.com, Andrew
Breitbart, gave an order on Twitter to a number of his soldiers. Pl.s Response to Mots. to
Dismiss (Pl.s Response) 6. In addition to the fact that Andrew Breitbart is not and never
was a party to this lawsuit, Kimberlins reference to an alleged, unspecified order does not
appear in the SAC and thus cannot be considered by this Court. Second, Kimberlin at one point

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.
4

Paragraph numbers are referenced rather than page numbers because Kimberlins brief, in
violation of Local Rule 102(2)(b), does not contain any page numbers.
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refers obliquely to the existence of a Breitbart.com article about Kimberlin, but he does not
identify which article he is referring to, nor does he offer any legal argument for why it could be
actionable. Id. 7. Finally, Kimberlin refers to a separate legal proceeding that has nothing to
do with Kimberlin or the facts of this case and is irrelevant to the question of whether Kimberlin
in this case has adequately stated a claim against Breitbart.com. Id. 23.
Viewed charitably, Kimberlins opposition brief offers conclusory discussions regarding
various undifferentiated defendantsbut these discussions refer to facts that have nothing to do
with Breitbart.com. 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 Kimberlin has never alleged that Breitbart.com is
affiliated with the National Bloggers Club, nor has Kimberlin ever offered any concrete facts
tying Breitbart.com to any such conspiracy. Moreover, Kimberlin argues that [n]one of the
Defendants . . . has demonstrated that Kimberlin was involved with swattings5 in any way,
shape or form. Id. at 2. But this argument misses the point: Breitbart.com has 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
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

5
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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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 allegations against Breitbart.com (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 AS TO AT LEAST THREE OF THE FOUR ARTICLES.
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 Breitbart.com noted in its motion to dismiss) was a
lower court decision, not a decision of Marylands highest Court, and it is not 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

6
Md. Code Ann., Cts. & Jud. Proc. 5-105 (West 2013).
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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 three out of the four Breitbart.com articles (the articles published
on October 11, 2010, June 8, 2012 and June 25, 2012 article) 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. Indeed, there can be no dispute that the October 11, 2010 article was
published more than three years before the filing of the lawsuit and thus cannot possibly be
actionable for false light or for any of Kimberlins other claims. See Md. Code Ann., Cts. & Jud.
Proc. 5-101 (West 2013) (establishing general statute of limitations of three years for tort
claims).
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 Breitbart.com founded on
scant allegations and a dearth of facts. And rather than addressing these deficiencies directly, he

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has offered lengthy distractions while barely even addressing his allegations against
Breitbart.com.
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 articles on
Breitbart.com that do not even mention him at all, forcing Breitbart.com to incur the expense of
navigating his meandering filings in order to defend itself. His opposition brief includes
gratuitous ad hominen attacks on the integrity of Breitbart.coms counsel (among other
defendants counsel) for defending his client in this case. Id. 24 n.2. This suit is nothing more
than a naked attempt to chill the speech of a news and opinion website with political views that
Kimberlin apparently disagrees with. Dismissal is warranted under the Anti-SLAPP Statute as
well as Rule 12(b)(6), and Breitbart.com is 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).7
CONCLUSION
Breitbart.com should not be a defendant in this case; it merely reported on a public
controversy, and as Kimberlins opposition brief demonstrates, there is no legitimate claim
against it. For the foregoing reasons and the reasons set forth in its Motion to Dismiss,
Breitbart.com respectfully requests that this Court dismiss all counts of Kimberlins Second

7
Kimberlin also does not dispute that dismissal is required under Rules 4(m) and 12(b)(5) based
on improper service of process. Although the Court set a deadline of June 27, 2014 for
Kimberlin to properly serve Breitbart.com, the summons and complaint were not served until
July 28, 2014. Having failed to serve within the time allotted by the Court, dismissal is
warranted under Rule 12(b)(5), Federal Rules of Civil Procedure.
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Amended Complaint against it, award Breitbart.com its 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 Defendant Breitbart.com

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