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Appeal: 15-1412

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No. 15-1412
__________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
__________________________
BRETT C. KIMBERLIN,
Plaintiff-Appellant,
v.
NATIONAL BLOGGERS CLUB, et al.,
Defendants-Appellees.
__________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
__________________________
INFORMAL RESPONSE BRIEF OF DEFENDANTS-APPELLEES
ERICK ERICKSON & REDSTATE
__________________________
Mark I. Bailen, Esq.
BAKER & HOSTETLER LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Tel: 202-861-1500
Fax: 202-861-1783
mbailen@bakerlaw.com

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Pursuant to Local Rule 34(b) and the Courts Informal Briefing Order of
April 21, 2015, Appellees Erick Erickson and RedState submit the following
memorandum in response to Appellant Brett Kimberlins Informal Opening Brief.
I.

To avoid further delay in the case, the Court should summarily affirm
the judgment below.
This Courts jurisdiction is ordinarily limited under 28 U.S.C. 1291 to

final decisions that have resolved all claims as to all parties. Fox v. Balt. City
Police Dept, 201 F.3d 526, 530 (4th Cir. 2000). This finality requirement,
however, is to be given a practical rather than a technical construction. In re
Mehfoud, 927 F.2d 596, at *3 (4th Cir. 1991) (quoting Gillespie v. U.S. Steel
Corp., 379 U.S. 148, 152 (1964)). [I]n deciding the question of finality the most
important competing considerations are the inconvenience and costs of piecemeal
review on the one hand and the danger of denying justice by delay on the other.
Gillespie, 379 U.S. at 152-53 (upholding exercise of jurisdiction by Court of
Appeals over a technically non-final decision because delaying the appeal would
have forced the parties to undergo inconvenience and cost).
Here, the District Court on March 17, 2015 dismissed 18 of the 19
defendants in the case (voluntary dismissals with prejudice were granted
previously to five other defendants). Although the case is still proceeding below as
to the one remaining defendant, Patrick Frey, the Court should nevertheless
summarily affirm the dismissal of the 19 defendants. Appellees Erickson and
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RedState (and others) would be prejudiced by having to endure further delay in this
case. These appellees have been sued solely for the words they published about
matters of public concern that is, for exercising their First Amendment right to
free speech. Dismissing the appeal without prejudice would increase the costs and
burdens to these appellees and would risk denying justice by delay to those who
have been subject to this lawsuit for more than a year and a half. Immediate
review of the appeal, on the other hand, poses no threat of inconvenience or
inefficiency, and the review would not be piecemeal in any meaningful sense.
Rather, the Court can summarily affirm the ruling below quickly and efficiently
under the Courts informal briefing schedule.1
II.

There is no merit to Kimberlins appeal of the dismissal of Erickson and


RedState.
Kimberlin has failed to articulate any basis for this Court to reverse the

District Courts ruling. Judge Hazels meticulous, 37-page opinion makes plain
the numerous defects in Kimberlins lawsuit, which is at bottom an attempt to use
federal racketeering and civil-rights statutes to target constitutionally-protected

If the Court were to dismiss the appeal without prejudice, appellees on remand
would have to either incur additional costs seeking an order under Federal Rule of
Civil Procedure 54(b) (for entry of a separate final judgment on the order granting
the motions to dismiss) or endure further delay until the matter against the single
remaining defendant is resolved.
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speech. Other appellees in this case have aptly identified the chief flaws in the two
arguments Kimberlin raises on appeal.
First, his claim that he was given insufficient latitude as a pro se plaintiff
ignores the enormous leeway that the District Court provided to Kimberlin. The
District Court went out of its way to accommodate him, allowing the filing of three
different complaints and excusing numerous procedural and substantive mistakes,
including errors in service of process and an attempt to use a reply brief to add
dozens of new factual allegations. Kimberlin is a serial litigant who has filed
hundreds of lawsuits, including against the judges of this very Court. See
Kimberlin v. Judges of the Fourth Circuit Court of Appeals, 188 F.3d 502 (4th Cir.
1999). But regardless of his experience, Kimberlin cannot use his pro se status to
avoid Iqbal and Twombly. Although a pro se litigants pleadings are to be
construed liberally, his complaint must contain factual allegations sufficient to
raise a right to relief above the speculate level and state a claim to relief that is
plausible on its face. Hodge v. Gansler, 547 F. Appx 209 (4th Cir. 2013)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Second, Kimberlin asserts in conclusory fashion that the District Court
somehow adopted improper heightened pleading standards. That is not the case.
He simply failed to state viable federal causes of action: he failed to plead any
pattern of racketeering activity or cognizable RICO injury and he failed to plead
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the required element under 42 U.S.C. 1985 that he is a member of a protected


class (which he is not).
Affirmance of the District Courts ruling is especially appropriate for
Erickson and RedState. Kimberlin did not assert any federal claims against
RedState; he alleged only state-law claims claims that were dismissed without
prejudice by the District Court and that have now been refiled in Maryland state
court. There is no basis for reversing the District Courts dismissal of the statelaw claims, nor has Kimberlin argued for any such reversal in his appeal.
Although Kimberlin purports to assert federal claims against Erickson, the only
acts that Erickson is alleged to have committed are acts of protected speech:
writing blog posts, speaking in a televised interview on CNN, and communicating
with public officials on matters of public concern. Such speech cannot possibly
constitute predicate acts for a pattern of racketeering activity under RICO or
civil rights violations.
For the foregoing reasons, the ruling of the District Court with respect to
Appellees Erick Erickson and RedState should be summarily affirmed.

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Respectfully submitted,
/s/ Mark I. Bailen
Mark I. Bailen, Esq.
BAKER & HOSTETLER LLP
Washington Square, Suite 110
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Tel: 202-861-1500
Fax: 202-861-1783
mbailen@bakerlaw.com
Counsel for Appellees Erick Erickson
and RedState

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