Walker Memo in Support of MTD

8/21/2019 Walker Memo in Support of MTD

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

*

BRETT KIMBERLIN,

*

Plaintiff

*

v. CASE NO.: !H"#$"$%&'

*

NATIONAL BLOERS CLUB, (t al.,

*D(f(n)ant

*

* * * * * * * * * * * * * * *

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT

+ALKERS RE-ISED#MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

ECF NO. #$&/ UNDER RULE #0 B /#/ AND B /1/

1Please note that this Memorandum is revised from a prior memorandum supporting Mr. Walkers firstmotion to dismiss (ECF No. 11). !out half of it is re"#"led$ half ne%. s mu"h as pra"ti"a!leprevious do"uments filed in this "ase have !een ignored in the name of starting from the &e"ondmended Complaint %ith a "lean slate.


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TABLE OF CONTENTS

'E *F +',*-'E& /

N'-*0+C'*N N0 &+MM- *F -2+MEN' 1

&'N0-0 *F -E3EW 4

. ',E PN'FF ,& N*' &''E0 CM ',' ',E 0EFEN0N'& ,3E3*'E0 15 +.&.C. 61789(C) :

. 'he Plaintiff ,as Not Properl# lleged that the 0efendants Engaged in -a"keteering"tivit# 8

1. 'he Plaintiff ,as Not lleged a 3iolation of 15 +.&.C. 61:;4 o! 14

(0) 'he Plaintiff ,as Not lleged n# Fraud -elated to Mr. Walkers llegedssault gainst the Plaintiff 14

/. 'he Plaintiff ,as Not Properl# lleged Mone# aundering under 15 +.&.C617:< 1:

:. 'he Plaintiff ,as Not lleged that 0efendants Committed -etaliation gainst aWitness and 3i"tim in 3iolation of 15 +.&.C. 661:14 or 1:19 18

. 'he Plaintiff has not Properl# lleged that the Claimed Pattern of -a"keteering "tivit#,as &uffi"ient Continuit# 94

ii


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C. 'he Plaintiff ,as Not Properl# lleged that an Enterprise E=ists 94

0. 'he Plaintiff ,as Not Properl# lleged that the sserted -a"keteering "tivit# ,asPro=imatel# Caused n?ur# to Plaintiffs usiness or Propert# 9:

. ',E PN'FF ,& N*' &''E0 CM ',' ',E 0EFEN0N'& ,3EC*N&P-E0 '* 3*'E 15 +.&.C. 61789(C) N 3*'*N *F 61789(0) 9anuar# 97$ 9;1/ 4;

=


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INTRODUCTION AND SUMMARY OF ARUMENT

'he 0efendants in"lude several vi"tims of a dangerous "rime "alled &W'ting. 'he term is

relativel# ne%$ and its definition "an !e de!ated$ !ut in the "ase of the 0efendants Walker$ 9Fre# and

Eri"kson$ this is %hat happened$ upon information and !elief. &omeone "alled the poli"e on different

dates$ impersonating one of the defendants$ usuall# using a Iha"kerK te"hniue to tri"k emergen"#

servi"es into !elieving he %as "alling from that defendants phone num!er. n ea"h "ase$ the

impersonator falsel# "onfessed to murdering their %ives. n other %ords$ someone "alled the poli"e and

said something to the effe"t of Im aron Walker$ and ?ust shot m# %ife.K 'his %as done to invoke a

severe poli"e rea"tion$ potentiall# in"luding a &W' team$ %hi"h is %h# it is "alled I&W'tingK and

%h# it is spelled this %a#. *!viousl#$ this tri"k is ver# dangerous.

'hese people are vi"tims of a "rime$ and ea"h has reason to suspe"t that the Plaintiff %as

involved. +pon information and !elief$ Fre#$ Walker$ Eri"kson$ and a fourth person$ Mike &ta"k (%ho is

not part of this suit)$ all pu!li"l# "riti"iLed the Plaintiff$ a "onvi"ted drug kingpin$ 4and terrorist kno%n

as I'he &peed%a# om!er.K/ 'he# %ere all &W'ted. Walker$ in parti"ular$ had %on a legal vi"tor#

against the Plaintiff on the same da# he %as &W'ted. Further$ upon information and !elief$ a person

using an P address asso"iated %ith the Plantiffs self@des"ri!ed friend William &"hmalfeldt threatened

to &W' 0efendant William ,oge $ another "riti" of the Plaintiff$ and a person seen arguing %ith Mr

&"hmalfeldt on the internet %as &W'ted on the ver# evening of that argument. t the same time$ the

Plaintiffs self@identified asso"iate$ Neal -auhauser$ has !een a""used in another suit of making Ia

veiled threat of &W'ting.K: n other %ords$ the Plaintiff is suing vi"tims of a "rime%ho have good

9Mr. Walker refers to himself in the third person for st#listi" purposes and to de@personaliLe this "ase.4U.S. v. imb&rlin$ 5;: F. 9d 91;$ 99:@945 (


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reason to suspe"t he %as involvedfor pointing out fa"ts su"h as those listed in the last t%o paragraphs.

None of the 0efendants have a""used the Plaintiff of &W'ting them$ !ut it is reasona!le to !elieve the

Plaintiff is responsi!le (%ith "o@"onspirators). *pen investigations might still produ"e an arrest %arrant

for the Plaintiff.

What this la%suit represents is the latest strike in the Plaintiffs multi@#ear "ampaign to silen"e

his "riti"s. 'he Plaintiffs goal is to punish those %ho have spoken out against him$ those %ho have

spoken to la% enfor"ement seeking to !ring him to ?usti"e$ and attorne#s %hose onl# I"rimeK %as the

pea"eful representation of his Ienemies.K For instan"e$ the root of his ire to%ard Mr. Walker is that he

dared to give pro !ono legal help to one of the targets of the Plaintiffs a!usive litigation$ and Mr.

Walkers refusal to !e !ullied. 'he root of his anger to%ard Mr. a"ker is he dared to giveMr. al'&r

pro !ono legal help. Presuma!l#$ ne=t the Plaintiff %ill !e angr# at the la%#ers %ho represent the

defendants in this "ase. 'hus$ this la%suit represents an attempt !# this Plaintiff to punish prote"ted

spee"h$ to punish those %ho %ould speak to la% enfor"ement a!out him$ and to punish la%#ers for

representing his Ienemies.K 'he Plaintiff also seeks to deter others from engaging in similar spee"h and

legal advo"a"#. ndeed$ this la%suit represents an attempt to "reate a federal "riminal la% of defamation

despite the &upreme Courts indi"ation that "riminal defamation la%s are o!solete.8

+nfortunatel#$ as is the "ase in a motion to dismiss$ this "ourt is reuired to treat all %ell@pleaded

allegations in the &e"ond mended Complaint (I&CK) !# this "onvi"ted per?urer


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not suffi"e.K Ashcroft v. Ibal$ ::8 +.&. 889$ 8


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"laimK as ItQhread!are re"itals of the elements of a "ause of a"tion$ supported !# mere "on"lusor#

statements$ do not suffi"e$KIbal$ ::8 +.&. at 8


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nIbal,the &upreme Court %rote that I%Qe !egin our anal#sis !# identif#ing the allegations in

the "omplaint that are not entitled to the assumption of truth.K ::8 +.&. at 851. t might !e useful to this

"ourt to do the same$ a"tuall# taking a "op# of the &C$ "rossing out in red ever# allegation that is not

entitled to a presumption of truth (and an# irrelevant and fantasti"al allegations)7and then seeing if there

is an#thing left in the %hite spa"es that %ould support an# "laim for relief.

Finall#$ as the Fourth Cir"uit noted in Adams v. Bain$ 87< F. 9d 1914$ 1917 (/th Cir. 1759)

ItQhere are t%o "riti"all# different %a#s in %hi"h to present a motion to dismiss for la"k of su!?e"t

matter ?urisdi"tionK under Fed. -. Civ. P. 19(!)(1). 'he first is !# asserting Ithat a "omplaint simpl#

fails to allege fa"ts upon %hi"h su!?e"t matter ?urisdi"tion "an !e !ased.K Id. n that "ase$ Iall the fa"ts

alleged in the "omplaint are assumed to !e true and the plaintiff$ in effe"t$ is afforded the same

pro"edural prote"tion as he %ould re"eive under a -ule 19(!)(8) "onsideration.K Id.at 4$ /. &e"ondl#$ a

0efendant might "ontend Ithat the ?urisdi"tional allegations of the "omplaint areQ not true$K id.$ in

%hi"h "ase Ithe "ourt is free to "onsider e=hi!its outside the pleadings to resolve fa"tual disputes

"on"erning ?urisdi"tion.K =and&r v. Unit&d Stat&s$ 9;19 W //


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"on"erned %ith eradi"ating organiLed$ long@term$ ha!itual "riminal a"tivit#.K US Airlin& (ilots Assn v.

AA((A, 44"$ 81: F. 4d 419$ 41< (/ thCir. 9;1;). 'herefore$ this "ourt should Inot lightl# permit

ordinar# !usiness "ontra"t or fraud disputes to !e transformed into federal -C* "laimsK !ut instead

assure Ithat the heightened "ivil and "riminal penalties of -C* are reserved for s"hemes %hose s"ope

and persisten"e set them a!ove the routine.K !li# Mort. "or#. v. McElhon&$ 5/1 F. 9d :41$ :45 (/thCir

1755). ,ere the Plaintiff has asked this "ourt to deviate far from this rule$ going so far as to attempt to

transform -C* into a federal "riminal defamation statute.

+nder 15 +.&.C. 61789(")$ the follo%ing elements must !e allegedD (1) a person (9) emplo#ed !#

or asso"iated %ith (4) an# enterprise (/) engaged in$ or the a"tivities of %hi"h affe"t$ interstate or foreign

"ommer"e$ (:) "ondu"ts or parti"ipates$ dire"tl# or indire"tl#$ in the "ondu"t of su"h enterprises affairs

(8) through a pattern of ra"keteering a"tivit# or "olle"tion of unla%ful de!t. 'he Plaintiff has not

properl# alleged an# part of this offense. Further$ the Plaintiff fails to properl# allege he %as damaged

in his !usiness or propert# !# the alleged predi"ate a"ts as reuired under 15 +.&.C. 6178/(")

""ordingl# the Plaintiffs "laims under 61789(") should !e dismissed.

A. T4( Plaintiff Ha N5t P657(6l8 All(9() t4at t4( D(f(n)ant En9a9() in Ra;(t((6in9

Ativit8.

+nder 15 +.&.C. 61781(:) the term Ipattern of ra"keteering a"tivit#K reuires (in relevant part)

Iat least t%o a"ts of ra"keteering a"tivit#.K I-a"keteering a"tivit#$K in turn$ is defined in 61781(1) as a

spe"ifi" laundr# list of federal and state "rimes. n the instant "ase$ the Plaintiff asserts that the

follo%ing "rimes allegedl# "onstitute ra"keteering a"tivit#D (1) o!stru"tion of ?usti"e under 15 +.&.C.

61:;4$ (9) E=tortion under 15 +.&.C 617:1$ (4) mail and %ire fraud in violation of 15 +.&.C. 66 14/1

and 14/4$ (/) mone# laundering under 15 +.&.C. 617:


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allege the elements of ea"h offense$ and$ thus$ fails to allege a single predi"ate offense supporting an

allegation of a pattern of ra"keteering a"tivit#$ let alone the t%o reuired !# 61781(:).

1. 'he Plaintiff ,as Not Properl# lleged a 3iolation of 15 +.&.C. 61:;4.

'he entiret# of the Plaintiffs "laim of o!stru"tion of ?usti"e is as follo%s. First$ the Plaintiff

"laims that unnamed 0efendants allegedl# lied to federal and state la% enfor"ement !# Ifalsel# a""using

Plaintiff of &W'tingQK and supposedl# providing Ifalse eviden"e to the F and state and lo"al la%

enfor"ement offi"ials asserting that Plaintiff %as involved in the &W'tingsQ$K &C O15;$ and to

allegedl# make similar "laims to Congresspersons$ O151. Further$ the Plaintiff makes a "on"lusor#

allegation that unnamed defendants IthreatenedQ Plaintiff and "ausedQ threats of in?ur# and death to !e

dire"ted at Plaintiff in order to intimidate him from "ooperating %ith la% enfor"ement offi"ials and from

e=er"ising this right to seek legal redress$K O154$ and supposedl# "ausing threats to !e made to state

offi"ials and ?udges$ O15/.

&u"h a"ts %ould !e reprehensi!le if the# %ere a"tuall# "ommitted$ !ut the# %ould not !e illegal

under 15 +.&.C. 61:;4. 'his statute relates %holl# to violen"e and intimidation aimed at federal ?urors

federal ?udges (defined !roadl#)$ or various offi"ers of or in a federal "ourt$ or to o!stru"t the federal

"ourts in general.1; 'he Plaintiff has not alleged$ in "on"lusor# fashion or other%ise$ an# relation to an#

federal "ase at all.11 'herefore$ the Plaintiff has not alleged a violation of 61:;4 in even the most

improper and "on"lusor# fashion and "annot "laim that the 0efendants have engaged in ra"keteering

a"tivit# !# "iting this statute.

1;S&&, &..U.S. v. Ardito$


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9. 'he Plaintiff ,as Not lleged that 0efendants Committed or ttempted to CommiE=tortion in 3iolation of 15 +.&.C. 617:1.

n &C OO1;9@1;/$ 158$ and 17;@179$ the Plaintiff alleges that 0efendants Walker$ a"ker$ and

0 Capital &trategies (I0C&K) filed a Imali"iousK federal la%suit O17; against the Plaintiff and a non@

profit that emplo#s the Plaintiff. 'hen$ in settlement negotiations these 0efendants allegedl# made a

settlement offer seeking the Plaintiffs dismissal from emplo#ment and "ertain !usiness do"uments

'his ver# ordinar# settlement offer$ the Plaintiff "laims$ is e=tortion in violation of 15 +.&.C. 617:1.

,o%ever$ 617:1(!) defines e=tortion as Ithe o!taining of propert# from another$ %ith his

"onsent$ indu"ed !# %rongful use of a"tual or threatened for"e$ violen"e$ or fear$ or under "olor of

offi"ial right.K 'he Plaintiff didnt allege that there %as an# use of a"tual or threatened for"e$ violen"e

or fear as those terms are understood in the statute. What %e have here$ from the Plaintiffs allegations

is nothing more than a pea"ea!le offer to settle a "ase$ %hi"h is not onl# legal and "ommon$ !ut a"tivel#

en"ouraged !# pu!li" poli"#.19

While there is no Fourth Cir"uit pre"edent on point$ other "ir"uits have "on"luded that a mere

la%suit settlement is not the kind of indu"ement that violates this statute.14 Parti"ularl# persuasive on

this point is this passage fromD&c' v. Enin&&r&d 4aminat&sD

E=tortion is the antithesis of litigation as a means of resolving disputes. 'o promote so"ialsta!ilit#$ %e en"ourage resort to the "ourts rather than resort to for"e and violen"e. etre"ogniLing a!usive litigation as a form of e=tortion %ould su!?e"t almost an#unsu""essful la%suit to a "olora!le e=tortion (and often a -C*) "laim... Comforta!lethat the ad?e"tive I%rongfulK in the e=tortion statute %as not intended to appl# to

19S&& &..dvisor# Committee Notes on Fed. -. Evid. /;5 (des"ri!ing Ithe pu!li" poli"# favoring the"ompromise and settlement of disputesK).14S&&, &..U.S. v. (&nd&rraft$ 97< F. 4d 1175$ 19;8 (11thCir. 9;;9)JI.S. 6osh "o., Inc. v. 6. 4a)rit%&nA7S$


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litigation$ %e hold that Plaintiffs allegations of !ad@faith litigation do not state thepredi"ate a"t of e=tortion.

4/7 F. 4d 19:4$ 19:5 (1;th Cir. 9;;4). settlement offer of even frivolous litigation is not e=tortion.

Further$ dismissal from a ?o! is not Ipropert#K under 617:1. n Sch&idl&r v. $, Inc.$ :4< +.&

474 (9;;4)$ the &upreme Court "onfronted an allegation that a!ortion protesters had engaged in the

predi"ate a"t of e=tortion !# allegedl# using for"e and violen"e to prevent %omen from entering

a!ortion "lini"s. 'he Court re?e"ted the argument that intangi!le rights$ su"h as the Iright to seek

medi"al servi"es from a "lini"$K idat /;1$ %as Ipropert#K under 617:1$ stating that in order for the thing

that is !eing sought to !e "onsidered Ipropert#K under the statute$ it must !e Isomething of valueK that

the a""used "an Io!tainK and$ therefore$ Ie=er"ise$ transfer or sell$K id.at /;:. 'hat does not des"ri!e

dismissal from a ?o!$ and$ therefore$ pressure to fire a person is not e=tortion under 617:1.

'hus$ the &C still fails to properl# allege e=tortion under 617:1$ and$ therefore$ the Plaintiff

"annot "ite it as an e=ample of ra"keteering a"tivit#.

4. 'he Plaintiff ,as Not lleged Wire or Mail Fraud +nder 15 +.&.C. 6614/1 and 14/4.

s noted in (&ll&ti&r v. =+&if&l$ IMail or %ire fraud o""urs %hen a person (1) intentionall#

parti"ipates in a s"heme to defraud another of mone# or propert# and (9) uses the mails or %ires in

furtheran"e of that s"heme.K 791 F. 9d 1/8:$ 1/75 (11 thCir.1771). 'he s"heme to IdefraudK must !e an

e=e"uted or une=e"uted plan to "ommit a "rime that fits the "lassi" "ommon la% elements of fraudD (1)

materialit#$ (9) a false statement$ (4) kno%ledge !# defendant that the statement is untrue$ (/) intent on

the part of the defendant to de"eive some person$ (:) ?ustifia!le relian"e !# some person on the

statement and (8) in?ur# to the Plaintiff as a result. 'his test is slightl# altered %hen the s"heme had not

!een e=e"uted (s&&id.at 1/75@77)$ !ut sin"e the Plaintiff in the instant "ase is alleging that the s"heme

had !een su""essfull# e=e"uted$ a more traditional test for fraud should appl#. Further$ ea"h "laim for

7


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fraud must !e pled %ith parti"ularit# under Fed. -. Civ. P. 7(!).

'here are four "ategories of alleged false statements the Plaintiff "itesD (1) the "laim that the

Plaintiff "ost Mr. Walker his ?o!$ (9) the "laim that the Plaintiff falsel# a""used 0efendant Walker of

assault$ (4) the "laim that the Plaintiff %as involved in &W'ting the 0efendants$ and (/) that the

National loggers Clu! (INCK) is a I:;1(")(4)K organiLation (referring to 98 +.&.C. 6:;1(")(4))

,o%ever$ the Plaintiff doesnt properl# plead fraud in an# instan"e.

() 'he Plaintiff ,as Not lleged n# Fraud -elated to NCs 6:;1(")(4) &tatus.

'he Plaintiff alleges several times that NC andor 0efendant k!ar falsel# stated that NC is a

6:;1(")(4) non@profit or %as a Inon@profitstatus pending.K ,o%ever$ in ea"h instan"e$ the Plaintiff

fails to plead fraud properl#.

First$ even if an# of the 0efendants made su"h statements$ the# %ould not !e fraudulent !e"ause

the# %ould !e true. NC has !een granted 6:;1(")(4) status. 'hus$ an# "laim that their status %as

pending %as true and an# "laim that the# %ere forming a 6:;1(")(4) non@profit is also true.1/ While

ordinaril# eviden"e "annot !e "onsidered on a motion to dismiss$ the "ourt is not reuired to Ia""ept as

true allegations that "ontradi"t matters properl# su!?e"t to ?udi"ial noti"e.K >&n&, 974 F. 4d at


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there!#.K2arrison, 1


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O74$ 7/$ 78$ 11;. &e"ond$ the Plaintiff still often fails to even allege that a statement %as made !laming

him for the &W'tings$ instead onl# "laiming that the alleged statements Iimpl#K or IimputeK that he

%as involved.15

'hird$ %here a statement is alleged and uoted$ the uoted material often doesnt "learl# a""use

the Plaintiff of an#thing. For instan"e$ in &C O5< the Plaintiff %rites I0efendant Fre# stated that

Plaintiff U"ould have gotten me killed$K !ut does not sho% %ith %hat %ords the Plaintiff %as named

(and in fa"t$ Mr. Fre# did not name the Plaintiff). ike%ise$ in O79$ the Plaintiff uotes the anon#mous

!logger I"e of &padesK as sa#ing$ ItQhe# are literall# going to get someone killed$K !ut doesnt sho%

that the Plaintiff is one of those people in"luded in the term Ithe#.K

Fourth$ the statements are often am!iguous as to %hat ea"h person is a""used of doing. For

instan"e in O19:$ the Plaintiff uotes the Franklin Center as sa#ing$ I"Qonvi"ted domesti" terrorist rett

Gim!erlin and his asso"iates have repeatedl# terroriLed !loggers and others %ho highlight his stor# %ith

over 1;; frivolous la%suits and / &W'ting atta"ks.K 'he statement is am!iguous as to %ho is !eing

!lamed for %hat a"t. ike%ise in O58$ the Plaintiff uotes a statement allegedl# from Mr. Walker (Mr

Walker does not re"all making this statement)$ that is$ on its fa"e$ onl# dis"ussing the &W'ting of Mike

&ta"k%hi"h is not the su!?e"t of this suitand that is am!iguous as to %hether he is !laming

Gim!erlin$ -auhauser or I'&2K for the &W'ting. s 0.C. Cir"uit said in llman v. Evans$ une 9:$ 9;19$ 0efendant &tranahan %rote an arti"le on reit!art."om$ impl#ing that Plaintiff%as responsi!le for the &W'tingQ of aron WalkerK).

19


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%ith kno%ledge that the# are false. 'he Plaintiff doesnt allege that an# 0efendant kno%s %ho the

&W'ter(s) are$ so ho% %ould an# of them kno% if it is falseT Moreover$ in &C O11/ the Plaintiff

%rites ImQan# of the 0efendants... !elieved that Plaintiff %as involved %ith the &W'tingsQK negating

the element of kno%ledge of falsit# for an unkno%n su!set of the 0efendants. Finall#$ the Plaintiff does

not on"e allege (even in a "on"lusor# fashion) that an# of these statements or impli"ations are material$

made %ith the intent on the 0efendants part to de"eive an unspe"ified person$ indu"ing ?ustifia!le

relian"e !# that person$ and "ausing in?ur# to the Plaintiff as a result. 'hus$ the Plaintiff has not properl#

alleged that an# 0efendant engaged in mail or %ire fraud as it relates to an# possi!le role the Plaintiff

had in the &W'tings of Walker$ Fre# and Eri"kson.

(C) 'he Plaintiff ,as Not lleged n# Fraud -elated to the oss of Mr. Walkers >o!.

First$ the Plaintiff has failed to allege %ith appropriate parti"ularit# that 0efendant Walker (or

an#one else) had a""used the Plaintiff of "ausing Mr. Walkers termination. &pe"ifi"all#$ the Plaintiff

failed to spe"if# %hat statements various persons made to suggest that the Plaintiff "aused the

termination of Mr. Walkers ?o!. E..&C O:5$ 5


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that Mr. Walker assaulted (or !attered) him at all. 'his is not the first time that the Plaintiff has

attempted to litigate this issue. Within half an hour of the alleged !atter#$ on >anuar# 7$ 9;14!efore

the Plaintiff "laimed to have gone to the hospitalthe Plaintiff filed for a Pea"e *rder in Montgomer#

Count# 0istri"t Court asserting that Mr. Walker had assaulted and harassed him. 17 n an &/ #art&

temporar# pea"e order hearing (also !efore he "laimed he %ent to the hospital)$ the "ourt held that

assault (as defined in M0. C*0EC-M. W64@9;1) and harassment had o""urred. 'hen$ on Fe!ruar#

5$ 9;19$ a final pea"e order hearing %as held %ith !oth parties present$ and the "ourt determined that

%hile harassment had o""urred$ no assault had o""urred. n appeal in Montgomer# Count# Cir"uit

"ourt also found that no harassment had o""urred and dismissed the entire petition. Mr. Gim!erlin %as

at all times granted a full opportunit# to present eviden"e and make his "laimsJ the ?udge simpl#

!elieved Mr. Walker. 'herefore$ the matter is settled in Mr. Walkers favor$ and he shouldnt !e for"ed

to litigate the matter again.

Further$ even if "ollateral estoppel didnt appl#$ the Plaintiff has failed to properl# allege that an#

defendant had made an# fraudulent statements regarding this alleged assault. 'here is not one single

uoted statement !# an# 0efendant related to the alleged assault.9; nd$ on"e again$ the Plaintiff also

doesnt name the time and pla"e of su"h statements$ or the Iidentit# of the person making the

misrepresentation and %hat he o!tained there!#.K2arrison$ 1


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other instan"e of mail or %ire fraud$ and "annot "ite it as an instan"e of ra"keteering a"tivit#.

/. 'he Plaintiff ,as Not Properl# lleged Mone# aundering under 15 +.&.C. 617:


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find that the Plaintiff has failed to properl# plead a violation of 15 +.&.C. 617:


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""ording to the Plaintiff$ the alleged assault o""urred on >anuar# 7$ 9;19$ &C OO::@:8. 'he onl#

spe"ifi" "onta"t the Plaintiff reports %ith federal la% enfor"ement %as$ Ion or a!out >ul# 1$ 9;19$K O77$

%hen he allegedl# spoke to the F. 'herefore$ as a matter of logi" an alleged assault appro=imatel# si=

months !efore that meeting "annot !e motivated !# that meeting unless the Plaintiff is alleging that Mr.

Walker is gifted %ith ps#"hi" po%ers.

While 61:14(!) prohi!its threats of death or !odil# in?ur#$ lia!ilit# is limited to the person

a"tuall# making those threats. 'hus$ the Plaintiffs "laim in &C O158 that ItQhis retaliation "ame in the

form of threats of death$ !atter# and in?ur# ca)s&d b fals& narrativ&s cr&at&d and #)blish&d b

D&f&ndantsK is insuffi"ient (emphasis added). eside the fa"t it is a "on"lusor# allegation$ this passage

is not "laiming that an# of the 0efendants personall# threatened him. nd %e see again ho% the

Plaintiff is attempting to "onvert -C* into a "riminal defamation statute.

Mean%hile in &C O158$ the Plaintiff "ontinues to vaguel# allege that unkno%n persons had

IthreatenedQ his famil#.K 'here is still no attempt to "atalogue %ho made an# threat$ or an# other

details ne"essar# in order to allo% this "ourt to determine if it is Iplausi!le on its fa"e$K Ibal,::8 +.&

at 884$ that the threat %ould meet the elements of 61:14(!). s su"h$ this "on"lusor# allegation should

!e disregarded.

Ne=t$ the Plaintiff asserts that the 0efendants have violated 61:14(e) !# "laiming that

0efendants Walker$ a"ker and 0 Capitol &trategies retaliated against Plaintiff !#taking harmful a"tion against Plaintiff$ in"luding attempting to interfere %ith Plaintiffs

si"Q la%ful emplo#ment and livelihood !e"ause Plaintiff "onta"ted la% enfor"ementoffi"ials a!out (1) an intestate si"Q murder threat against Plaintiff !# &eth llen that %as"ommuni"ated to 0efendants Walker$ Nag#$ Fre# and another person$ sin"e de"eased$ (9)the assault and !atter# !# 0efendant Walker against Plaintiff in the Montgomer# Count#Courthouse$ (4) the false allegations of &W'tingQ. (/) and the "ivil rights violationsagainst Plaintiff !# 0efendant Fre#.

&C O17


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Whoever kno%ingl#$ %ith the intent to retaliate$ takes an# a"tion harmful to an# person$incl)din int&rf&r&nc& +ith th& la+f)l &m#lom&nt or liv&lihood of an #&rson$ forproviding to a la% enfor"ement offi"er an# truthful information relating to the

"ommission or possi!le "ommission of an# Federal offense$ shall !e fined under this titleor imprisoned not more than 1; #ears$ or !oth.

(emphasis added.) While there is little "ase la% on the su!?e"t$ o!viousl# this reuires the Plaintiff to

allegeD 1) an a"t 9) harmful to an# person$ "ommitted 4) %ith intent to retaliate /) for providing truthful

information :) to a federal la% enfor"ement offi"er 8) relating to the "ommission or possi!le

"ommission of an# federal offense.

'he most o!vious pro!lem %ith this "laim is that the Plaintiff makes no non@"on"lusor#

allegation that he %as a"tuall# harmed in his emplo#ment or livelihood in an# %a#J and the statute

noti"ea!l# does not punish the mere IattemptK to harm a person in this respe"t.

&e"ond$ the Plaintiff has not alleged an# action!# the 0efendants. While no "ourt has defined

the term Ia"tionK in 61:14(e)$ la"ks a% 0i"tionar# defines Ia"tionK (%hen it is not referring to a

la%suit) as ICondu"tJ !ehaviorJ something doneJ the "ondition of a"tingJ an a"t or series of a"ts.K

CG& W 0C'*N- 95 (8th ed. 177;). Words are not t#pi"all# seen as a"tion. S&&, &..

Brand&nb)r v. hio$ 47: +.&. ///$ //< (1787) (stating that the state "an for!id %ords %hen the# are

Idire"ted to in"iting or produ"ing imminent la%less actionK (emphasis added)). n the fe% instan"es

%here %ords are seen as a"tionssu"h as the formation of a "ontra"t$ a "riminal putting a IhitK on

another person$ or firing an emplo#ee from a ?o!the# are differentiated from ordinar# spee"h !# !eing

referred to as Iver!al a"ts.K S&&, &..,n&r-*r&o&, Inc. v. 4&ad&rshi# Soft+ar&, Inc.,19 F. 4d :9ul# 1$ 9;19. Even then$ he does

not share$ as reuired in U.S. v. riht,No. 11@C-@;989 at R9 (&.0. la. Fe!ruar# 5$ 9;19) Ithe truthful

information provided !# the %itnessK nor does he Iidentif# an# federal offense to the possi!le

"ommission of %hi"h the truthful information relates.K ike%ise$ the Plaintiff doesnt allege that the

0efendants kne% that he spoke to the F$ %hen the# found out$ %hat the# kne% a!out %hat he said or

that the# intended to retaliate against the Plaintiff for providing su"h information. For instan"e$ if the

0efendants never kne% that the Plaintiff spoke to the F$ then one "annot infer that an# of the alleged

"ondu"t %as in retaliation for that "onta"t. &u"h spe"ifi"it# is ne"essar# to advan"e his "laim Ia"ross the

line from "on"eiva!le to plausi!le.K *+ombl$ ::; +.&. at :


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(i) "auses su!stantial emotional distress in su"h personJ and

(ii) serves no legitimate purposeJ

'he Plaintiff has not laid out an# of these elements.9/ ,e has simpl# said the %ord IharassK a fe% times

'he Plaintiff has not alleged an# Iserious a"ts$K that an# 0efendant engaged in a I"ourse of "ondu"t$K or

that the# relate to an# anti"ipated federal pro"eeding or "riminal investigation$ or that the# %ere

"al"ulated to prevent the Plaintiff from parti"ipating in those pro"eedings or investigations. 9: 'he

Plaintiff asserts that the 0efendants have %ritten man# %ords a!out him$ !ut %ords are not t#pi"all#

seen as a"ts.

Further$ if this "ourt "hose to appl# the harassment statute to the 0efendants pea"ea!le %ritings

as the Plaintiff surel# %ishes this "ourt %ouldsu"h an appli"ation %ould !e un"onstitutional. >udge

'itus opinion in U.S. v. "assid$ 51/ F. &upp. 9d :


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%ould not survive the stri"t s"rutin# test. s the "assid"ourt noted$ ItQo survive stri"t s"rutin#$ the

2overnment has the !urden of sho%ing that a "ontent@!ased restri"tion is ne"essar# to serve a

"ompelling state interest.KId.at :5/ (internal uotation marks removed). n "assid$ "riminaliLation of

e=pression %as not ne"essar# !e"ause the alleged vi"tim Ihad the a!ilit# to prote"t her o%n sensi!ilities

simpl# !# averting her e#es from the 0efendants log and not looking at$ or !lo"king his '%eets.K Id

at :5: (internal uotation marks omitted). 'he instant Plaintiff "an !e e=pe"ted to do the same.

f there is an# uestion of %hether Congress intended to rea"h the 0efendants alleged e=pression

in this "ase$ this "ourt should interpret 61:19(d) so it does not. s the &upreme Court o!served in

()blic "iti%&n v. D6$/71 +.& //;$ /88 (1757)D

t has long !een an a=iom of statutor# interpretation that %here an other%ise a""epta!le"onstru"tion of a statute %ould raise serious "onstitutional pro!lems$ the Court %ill"onstrue the statute to avoid su"h pro!lems unless su"h "onstru"tion is plainl# "ontrar# tothe intent of Congress.

(internal uotation marks omitted). 'herefore$ this statute should !e interpreted so that pea"eful a"tivit#

intended to "ommuni"ate to the pu!li" at large is not harassment under 61:19(d).98

'he Plaintiff also "laims a "onspira"# under 61:19(k)$ !ut literall# makes no effort to plead the

elements of "onspira"#. nstead$ he simpl# thro%s around the %ords I"onspira"#$K and similar terms

no% and then. 'his is insuffi"ient as a matter of la%.9a"o!son$

0onald 0ouglass$ Mike -ogers$ Patri"k 0ollard$ and others$ !ut none of these %riters are named as

mem!ers of the enterprise. 'he Plaintiff never e=plains %h#.

,o%ever$ for Ms. Nag#$ all it takes is a single ne%s arti"le allegedl# IsmearingK the Plaintiff$

O45$ for the Plaintiff to guess several times that she %as "onspiring %ith other defendants and generall#

part of the enterprise. t the same time$ 0efendant Eri"kson is alleged to have ?oined the enterprise

t+ic&D first$ Ion or a!out Ma# 1:$ 9;19$K %hen he "onta"ted lo"al poli"e to %arn them he might !e

&W'ted$ O54$ and then$ allegedl#$ he ?oined the enterprise a se"ond time IoQn Ma# 9


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%rote an arti"le dis"ussing the "rime "ommitted against him$ O7:$ another e=ample of ho% the Plaintiff

"ant keep his stor# straight. ike%ise$ 0efendant '%it"h# is !eing a""used of !eing a part of the

enterprise !e"ause of an arti"le Ithat "ompiled doLens of t%eets !# third partiesQ that together impute

that Plaintiff "ommitted the &W'tingQ.K O 78. &o for '%it"h# it %as enough to uote third parties as

allegedl# IimputingK responsi!ilit# to the Plaintiff for &W'ting. et$ even though Mr. Walker

appeared on a %e!site run !# 'he ,uffington Post and the# allo%ed him to allegedl# IimputeQ that

Plaintiff &W'Qted him$K O58$ 'he,uffingtonPost."om$ n". is not named as a 0efendant in this suit

ike%ise$ in O1/; the Plaintiff alleges that I0efendant k!ar gave an intervie% to 'he E=aminer in

%hi"h he imputed that the Plaintiff %as responsi!le for &W'tingsQ$K !ut the "ompan# that o%ns that

site$ Clarit# 0igital 2roup C$ is not a defendant. f the Plaintiff has an# reason to rule an# person in

or out of this supposed enterprise$ he has #et to dis"lose it. ike the plaintiff in *+ombl,::; +.&. at

:/5@/7$ the instant Plaintiff thinks it is suffi"ient to allege that 0efendants engaged in Iparallel

"ondu"t... a!sent some fa"tual "onte=t suggesting agreementK in order to prove "on"erted a"tion

,o%ever$ on a motion to dismiss$ a "ourt is not reuired to make Iun%arranted dedu"tions of fa"t$ or

unreasona!le inferen"es$K >&n&$ 974 F. 4d at i


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person "an onl# re"over for in?uries to I!usiness or propert#.K ,e "annot re"over for in?ur# to his

Iname$K !e"ause su"h in?ur# is onl# re"overa!le under a theor# of defamation. S&&, &..,2amm v

5hon&-(o)l&nc 5or&r (harmac&)ticals$ 15< F. 4d 7/1$ 7/7 (5 thCir. 1777) (Ireputational in?ur# is not

in?ur# to !usiness or propert#K under -C*)J "h) v. (hilad&l#hia Eal&s$ /;< F. &upp.


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spe"ifi" allegation of a loss of funding is in &C O 1:9 %here he "laims that the &tate 0epartment

"an"eled a grant to >usti"e 'hrough Musi" %hen it learned that a "onvi"ted terrorist %as using that

mone# to IhostQ a"tivists from ran$ 'urke#$ GaLakhstan$ Eg#pt$ emen$ i!#a$ &audi ra!ia$ 'unisia$

ahrain$ >ordan and else%here.K Id. 'he Plaintiff does not properl# allege that this in?ur# %as "aused

!# an# %rongful a"t$4;and$ in an# "ase$ that is a loss to his emplo#er and not to him.

'hus$ the Plaintiff has failed to properl# allege an# in?ur# to his !usiness or propert#$ or an#

element of a violation of 15 +.&.C. 61789(") and dismissal of this "ount %ith pre?udi"e is appropriate.

II.THE PLAINTIFF HAS NOT STATED A CLAIM THAT THE DEFENDANTS HA-E

CONSPIRED TO -IOLATE #2 U.S.C. 3#'10C/ IN -IOLATION OF 3#'10D/.

'he Plaintiff also alleges that the 0efendants "onspired to violate 61789(") under 61789(d) and

then other%ise treats 61789(d) as though its elements are identi"al to 61789("). S&&, &..&C OO1


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overt a"t in furtheran"e of that agreement (:) pro=imatel# "aused damage to the Plaintiffs !usiness and

propert#.41 Not onl# has the Plaintiff failed to properl# allege an enterprise a"tuall# e=isted$ he also

failed to allege it %ould have e=isted if some agreement had !een "arried into for"e. n fa"t$ the Plaintiff

has failed to allege an# su"h agreement even in the most "on"lusor# fashion. Finall#$ the Plaintiff has

on"e again failed to properl# allege he %as in?ured !# an# predi"ate a"ts$ or even that there %ere su"h

a"ts. 'herefore$ this "ourt should dismiss all "laims under 15 +.&.C. 61789(d) %ith pre?udi"e.

III.

THE PLAINTIFF HAS NOT PROPERLY ALLEED A -IOLATION OF @0 U.S.C. 3#'2$

AAINST DEFENDANT FREY.$0

n order to state a "laim under /9 +.&.C. 61754$ the Plaintiff must allege suffi"ient fa"ts that$ if

true$ %ould lead this "ourt to !elieve that (1) a person$ (9) a"ting under "olor of state la%$ (4) su!?e"ted

or "aused to !e su!?e"ted$ (/) the Plaintiff to the deprivation of rights "onferred !# the +.&. Constitution

or Federal la%$ (:) pro=imatel# "ausing (8) damage to the Plaintiff. 'he Plaintiff has failed to state a

"laim under 61754.

First$ 0efendant Fre# did not a"t under "olor of la%. 'he most useful "ase on this point is$aff&

v. !r& &t al.No. 19@C3@;5//4 (C.0. Cal.$ 9;19).44 n that "ase$ involving the same 0efendant Fre# and

the same statute$ the "ourt found that Fre# had not a"ted under "olor of la%. s %ith the instant "ase$ the

41Salinas v. U.S.$ :99 +.&. :9 (177


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ma?orit# of the Naffes "laim that Fre# had a"ted under "olor of la% %as !ased on the fa"t that his da#

?o! %as as a state emplo#ee and he mentioned that he %orked for the state on his %e!site. s the "ourt

held in$aff&$ Ia pu!li" emplo#ee does not %ear his or her Upu!li" emplo#ee hat at all times$ no matter

%hat their a"tivities$ even if those a"tivities have some tangential relation to their role(s) or duties.K 'he

fa"t he gave legal advi"e to Mr. Walker is not relevantD an# attorne# "an do that. Moreover$ the fa"t that

his emplo#er respe"ts Mr. Fre#s First mendment rights does not transform his "ondu"t into state

a"tion. 'he$aff& "ourt found that IQuite simpl#$ nothing Plaintiff has alleged plausi!l# suggests that

Fre# a"ted$ or purported or pretended to a"t$ in the performan"e of his offi"ial duties.K 'he instant

Plaintiff has offered a!solutel# no reason %h# this "ourt should find other%ise.

'o tr# to meet this !urden$ the Plaintiff implausi!l# alleges that a threat "ame from the .

Count# &heriffs 0epartment at Fre#s "ommand$ &C O118. 'here are several pro!lems %ith this.

First$ the Plaintiff has misuoted his o%n e=hi!it. n &C O118$ he "laims the message said

IE3E ,M *NE. 0*N' 2* ',E-E.K nd #et$ in O/5 of his opposition to Mr. Walkers

previous motion to dismiss$ ECF 97$ he "ites to an atta"hed E=hi!it . f the "ourt e=amines E=hi!it

the entiret# of the alleged message is I0ont go there.K 'he phrase Ileave him alone$K %as %holl# made

up !# the Plaintiff. 'his "ourt "an "onsider this do"ument !e"ause it "onstitutes a ?udi"ial admission$4/

and$ as noted !# the Fourth Cir"uit$ this "ourt is not o!ligated to Ia""ept as true allegations that

"ontradi"t matters properl# su!?e"t to ?udi"ial noti"e or !# e=hi!it.K >&n&$ 974 F. 4d at


40/60

the Plaintiff to misstate the "ontents of his o%n e=hi!it.

+nder either version of the statement$ the Plaintiff has not made out a plausi!le allegation that it

%as a threat$ let alone that it %as sent at the dire"tion of Mr. Fre#. Whether a statement is "onsidered a

threat is ?udged !# an o!?e"tive Ireasona!le personK standard$ U.S. v. Darb$ 4< F. 4d 1;:7$ 1;8/ (/ th

Cir. 177/)$4:and this doesnt ualif#.48 t takes several additional leaps of logi" to !elieve that the

message %as sent at Mr. Fre#s !ehest$ %ith the a!surd promise that Fre#$ a state prose"utor$ "ould

prote"t someone fromf&d&ral"riminal prose"ution.4'MP is a"tive in man# "auses$ it might have referred to man# different issues.4


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on dut#$ "ausing a "itiLen to !e arrested. 'he "ourt found that Ithe mere fact that Riley was a

public employee and on duty did not transform him into a state actor.Id.at *3. Instead

because Riley was exercising no greater power than that available to any other citizen

when he provided information to the police and pursued a criminal complaint Riley was

not a state actor.Id.at *4. Like inRiley, there is no non-conclusory allegation that Mr

Frey did anything more than what any victim of a crime can do, and, therefore, this

alleged conduct does not transform him into a state actor.

Meanwhile, the Plaintiff writes [w]hen [Mr. Frey] issued his threat to investigate

and imprison Plaintiff, in SAC 113, as though he had previously accused Mr. Frey of

making such a threat to him in the SAC. He had not. Thus, his claim of a threat to

investigate is purely conclusory and not entitled to the presumption of truth.

Finall#$ as usual$ the Plaintiff stum!les on the issue of damages. 'he Plaintiff has not alleged

that an# a"t or omission !# 0efendant Fre# "aused the Plaintiff to !e deprived of an# federal right. 'he

Plaintiff "laims that Fre# parti"ipated in the "reation of Ifalse narrativesK a!out him$ O9;5$ thus

allegedl# defaming him$ !ut there is no federal la% prote"ting the Plaintiff from defamation. 'he

Plaintiff "laims that Mr. Fre# attempted to "onvin"e arrett ro%n to violate some unstated right of the

Plaintiff !ut admits that Mr. ro%n refused to do so$ O19;. Even Ms. ord (in 4ord v. 5il&) suffered

!eing arrestedJ ho% %as the Plaintiff harmed !# the alleged investigations and threats of investigations

!# Mr. Fre#T ike%ise$ the Plaintiff "omplains that Mr. Fre# IfailedQ to "onta"t la% enfor"ement %hen

41


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a person threatened to murder Plaintiff.K Id. First$ Mr. Fre# has no dut# to prote"t the Plaintiff from

private violen"e. D&Shan& v. inn&bao "o)nt Dt. of Social S&rvs. $ /57 +.&. 157$ 17:@178 (1757)

&e"ond$ the Plaintiff admits in O/1 that I0efendant Nag# did "onta"t the authorities.K &o in %hat %a#

%as the Plaintiff harmed !# this alleged failure$ let alone deprived of an# federal right !# itT What

pre"isel# %ould have happened differentl# if Mr. Fre# dupli"ated Ms. Nag#s effortsT 'he Plaintiff

doesnt sa#$ and his opportunities to e=plain have run out. 'hus$ for all the forgoing reasons the

Plaintiffs "laims !ased on /9 +.&.C. 61754 should !e dismissed %ith pre?udi"e.

I-.THE PLAINTIFF HAS NOT ALLEED A -IOLATION OF @0 U.S.C. 3#'2&.

'he Plaintiff "laims that "ertain defendants have violated the Gu Glu= Glan "t of 15


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vi"tims %ere not %orth# of life !e"ause the# %ere lesser humans.

'his is insuffi"ient underBra v. Al&/andria om&ns 2&alth "linic$ :;8 +.&. 984$ 987 (1774). nBra

the &upreme Court re?e"ted the "laim that animus to%ard I%omen seeking a!ortionK ualified as

invidious animus under 6175:. f the &upreme Court %ill not re"ogniLe a prote"ted "lass of individuals

!ased on the desire to engage in la+f)la"tivit# (a!ortion)$ it onl# follo%s that the Court %ill not

re"ogniLe a prote"ted "lass of people %ho have a"tuall# engaged in )nla+f)l a"tivit# su"h as drug

dealing$ do"ument forger#$ and espe"iall# !om!ings. Put simpl#$ the Gu Glu= Glan "t of 15


44/60

-.

THIS COURT SHOULD DISMISS ALL STATE LA+ CLAIMS.

'he Plaintiff has also alleged a num!er of "laims !ased on state la%. e"ause there is no

diversit# of "itiLenship$ this "ourt "an onl# have ?urisdi"tion on these "laims !# e=er"ising its

supplemental ?urisdi"tion under 95 +.&.C. 6148


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an# of them. 'hus$ even if this "ourt had ?urisdi"tion over his state la% "laims$ this "ourt should dismiss

for failure to state a "laim for %hi"h relief "an !e granted.

1. 'he Plaintiff 0oesnt Properl# &tate a Claim for 0efamation or False ight.

n (iscat&lli v. >an Smith$ /9/ Md. 97/$ 4: .4d 11/;$ 11/< (9;19)$ the Mar#land Court of

ppeals stated that

n order to plead properl# a defamation "laim under Mar#land la%$ a plaintiff must allegespe"ifi" fa"ts esta!lishing four elements to the satisfa"tion of the fa"t@finderD (1) that thedefendant made a defamator# statement to a third person$ (9) that the statement %as false$ (4)that the defendant %as legall# at fault in making the statement$ and (/) that the plaintiff there!#

suffered harm.

(nternal uotation marks omitted). 'his is not a merel# a reuirement that one plead these fa"ts

generall#$ !ut that one plead %ith parti"ularit# "ompara!le to that reuired under Fed. -. Civ. P. 7(!).

For instan"e$ inBro+n v. !&r)son Ent&rs., Inc.No. 19@C3@151< at R: (0. Md. 0e". 11$ 9;19) this "ourt

held that a "omplaint that I"ontainedQ no spe"ifi" des"ription of the "ontent of the alleged statements

nor %hen and ho% the# %ere "ommuni"atedK %as insuffi"ient and it %as dismissed. s noteds)#rain

the se"tion on alleged %ire and mail fraud$ pp. 7@1:$ the Plaintiff has seriall# failed to plead that level of

detail and for this reason the "laim for defamation should !e dismissed.

t is parti"ularl# important to reuire the Plaintiff to plead %hen su"h statements o""urred

!e"ause M0C*0EC'&. >+0. P-*C. 6:@1;5 states that IaQn a"tion for assault$ li!el$ or slander shall

!e filed %ithin one #ear from the date it a""rues.K 'hat statute of limitations %as tolled on *"to!er 1:$

9;14$ %hen this suit %as filed. While alleging that a statement is made outside the statute of limitations

is not an element of defamation$ reuiring the Plaintiff to state %hen the alleged statements %ere made

%ould make it "lear to this "ourt %hether the statute of limitations defense applies./;

/;Broo's v. inston-Sal&m,5: F. 4d 1


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-ea"hing the merits$ the plaintiff seriall# fails to allege that an# statements %ere made$ generall#

"laiming that responsi!ilit# for the &W'tings %ere implied or imputed. Further$ one has to %onder

ho% su"h Iimpli"ationsK of &W'ting$ even if untrue$ %ould harm the Plaintiffs reputation

Parti"ularl# is instru"tive on this point is "ardillo v. Do)bl&da 3 "o., Inc.$ :15 F. 9d 845 (9ndCir

17


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n "ardillo$ the &e"ond Cir"uit "on"luded that the plaintiffs rap sheet %as suffi"ient to render

him defamation@proof as follo%sD

%e "onsider as a matter of la% that appellant is$ for purposes of this "ase$ li!el@proof$ i. e.$so unlikel# !# virtue of his life as a ha!itual "riminal to !e a!le to re"over an#thing otherthan nominal damages as to %arrant dismissal of the "ase$ involving as it does Firstmendment "onsiderations.

:15 F. 9d at 847. f -o!ert Cardillos histor# of mainl# non@violent offenses of little fame rendered him

defamation@proof$ then "ertainl# a "onvi"ted !om!er %ho terroriLed an entire to%n and ultimatel# "ost a

man his lifenot to mention his organiLed "riminal a"tivities as a drug kingpinshould render the

instant plaintiff euall# defamation@proof.

Further$ sin"e the operative uestion is %hether the alleged defamation "ould a"tuall# damage a

plaintiffs reputation or if the damage had alread# !een done$ "ourts have held that prior negative

pu!li"it# should !e taken into a""ount %hen "onsidering %hether one is defamation proof./1 n 1777

&late magaLine "alled the Plaintiff a Iha!itual liar$ and all@around so"iopath.K/9 n arti"le pu!lished ?us

after his "onvi"tions for the &peed%a# om!ings a""used the Plaintiff of plotting !ehind !ars to (1)

frame someone else for his "rimes$ (9) arrange for the murder of one of his prose"utors and several other

persons$ and (4) to attempt to destro# the politi"al "areer of the same prose"utor in a sting operation./4

!ook %ritten %ith the Plaintiffs help !# Mark &inger insinuated that he %as a pedophile engaged in a

relationship %ith a ten #ear old girl named 0e!!ie arton.// 'his authoriLed !iograph# also suggested

/1S+at& v. Schiff&rs$ 7


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that he %as involved in the murder of >ulia &"#phers$ the grandmother of the #oung suspe"ted vi"tim$

C'HENG at 59 &t s&$ and that the !om!ings %ere "ommitted in order to distra"t the poli"e from that

murder$ id.at 57 &t s&./: &ingers !ook also a""uses Gim!erlin of ve=atious litigation/8and features

Gim!erlin speaking in detail a!out his life as a drug kingpin (C'HEN G at 8;@81 and #assim)

"onfessing to ta= evasion (id.at 81@89)$ "onfessing to a ra"ist prison fight %here he "alled his opponent

the In@%ordK repeatedl# (id.at 154)J and "onfessing to sa!otaging militar# euipment thus pla"ing our

troops in danger (id.at 15/). ndeed$ sin"e this "ase has !egun$ he has !een "aught forging do"uments in

t%o "ourts and passing them off as genuine$ adding to his long list of reprehensi!le "ondu"t./ulia &"#phers

0oes he think he %as defamed !# the suggestion that he %ould !e involved in de"eiving la%

enfor"ementT 'he previousl# pu!lished reports that he tried to frame someone else for the &peed%a#

(1778) (IC'HENGK). &inger identifies the Plaintiffs #oung suspe"ted vi"tim as I>essi"aK arton./:S&& also5&troInd? *h& S#&&d+a Bombins, (art I? !or a &&' in 1@8, th& *o+n of S#&&d+a +as*&rrori%&d b a S&rial Bomb&r$ N0NP*& &'-$ (availa!le at httpD%%%.ind#star."omarti"le77777777NEW&;81;;717;19) visited 0e"em!er


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om!ings$ as %ell as Mark &ingers suggestion that he "ommitted the &peed%a# om!ings in order to

defle"t the poli"e from investigating the murder of >ulia &"#phers esta!lishes that.

*r "onsider the spe"ifi" harm that Mr. Gim!erlin alleges that the 0efendants have done to his

reputation$ "laiming in &C O99: this alleged defamation ImakesQ Plaintiff appear odious$ infamous

andor frightening.K n# person familiar %ith his proven "areer in "rime is likel# to dra% the same

"on"lusion. *ne doesnt need to a""use a man %ho earned the ni"kname of I'he &peed%a# om!erK of

&W'ting to make people think he is odious$ infamous and frightening. perusal of pu!li"l# availa!le

"ourt re"ords is suffi"ient. 'he Plaintiffs reputation is so poor it is diffi"ult$ if not impossi!le$ to harm it

further. ike in "ardillo$ the instant Plaintiff might at !est o!tain nominal damages$ and$ therefore$ the

First mendment "ounsels against hearing an# defamation "laims at all$ as it did in "ardillo.

Further$ the plaintiff has also pleaded no fa"ts that tend to esta!lish mali"e as is reuired %hen

the person is a pu!li" figureand there "an !e little dou!t that the instant Plaintiff is a pu!li" figure.

'his "ourt has said that pu!li" figures are people %ho

have$ !# their o%n "ondu"t$ Ivoluntaril# e=posed themselves to in"reased risk of in?ur#from defamator# falsehood "on"erning them.K "iting G&rt% v. 5ob&rt &lch, Inc.$ /15+.&. 494$ 4/: (17


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that da# for%ard./5

'he same Plaintiff also pu!li"l# "laimed to have sold drugs to 3i"e@Presidential Candidate 0an

Aua#le in order to s%a# a Presidential ele"tion and su!seuentl# sued prison offi"ials for attempting to

silen"e him. imb&rlin v. 9)inlan :I;$ 8 F. 4d


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all of these reasons$ his "laim for defamation should !e dismissed.

'urning to false light$ as this "ourt has noted in "ro+l& v. !o/ Broadcastin "o.$ IiQn

Mar#land$ a "laim for false light invasion of priva"# ma# not stand unless the "laim also meets the

standards for defamation$K 5:1 F. &upp.


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at@%ill emplo#ee)$ he has not made an# non@"on"lusor# allegation of an# !rea"h of that "ontra"t$ and the

Plaintiffs o%n language suggests the# did not. S&&, &.., &C O9:7 (alleging that defendants

Iintentionall# att&m#t&d to interfere %ithK his emplo#ment relationship (emphasis added)). 'herefore

the Plaintiff has not pled intentional inferen"e %ith an e=isting "ontra"t.

ike%ise$ the firstseventh "ount talks a!out prospe"tive e"onomi" advantage$ !ut it is the same

"ause of a"tion as tortious interferen"e %ith !usiness relationships.:; 'he elements of this tort in

Mar#land are as follo%sD

(1) intentional and %illful a"tsJ (9) "al"ulated to "ause damage to the plaintiffs in theirla%ful !usinessJ (4) done %ith the unla%ful purpose to "ause su"h damage and loss$%ithout right or ?ustifia!le "ause on the part of the defendants (%hi"h "onstitutes mali"e)Jand (/) a"tual damage and loss resulting.

S#&nl&r v. S&ars, 5o&b)c' 3 "o.$ 184 Md. pp. 99;$ 5usti"e 'rough Musi" si"Q and as a musi"ian.K &C O98:

n relationship to future !usiness the IplaintiffQ must identif# a possi!le future relationship %hi"h is

likel# to o""ur$ a!sent the interferen"e$ %ith spe"ifi"it#.K Baron !inancial "or#. v. $atan%on$ /


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defendants "ondu"t in interfering %ith "ontra"t or !usiness relations %as a""omplishedthrough improper means. Conseuentl#$ to re"over for tortious interferen"e %ith !usinessor "ontra"tual relationships$ the defendants "ondu"t must !e Iindependentl# %rongful or

unla%ful$ uite apart from its effe"t on the plaintiffs !usiness relationships.K

Id.at 8/1@8/9. &o$ for instan"e$ if the reason %h# he suffered these losses %as !e"ause of pu!li"it# of

truthful information related to his "riminal past$ that %ould not support a "laim of tortio)sinterferen"e

%ith !usiness relationships. 2iven that the Plaintiff has trou!le understanding %h# the &tate 0epartment

%ould not %ant I'he &peed%a# om!erK training activists from Iran$ &C O1:9$ it is parti"ularl#

important that this "ourt demand spe"ifi"it#$ so it "an have some assuran"e that the alleged interferen"e

%as a"tuall# tortious.

'he &C having failed to make an# non@"on"lusor# allegation of either tortious interferen"e

%ith an e=isting "ontra"t$ or %ith !usiness relationships$ su"h "laims should !e dismissed %ith pre?udi"e

4. 'he Plaintiffs Claim for atter# is arred !# Collateral Estoppel and the &tatute ofimitations.

'he Plaintiffs "laim of !atter# arises from the in"ident on >anuar# 7$ 9;19. s noted a!ove

s)#ra,pp. 14@1:$ an# "laim that Mr. Walker assaulted the Plaintiff on that da# is pre"luded !# "ollateral

estoppel. 'he Plaintiff had his da# in "ourt on these "laims. ,e lost. Mr. Walker should not !e for"ed to

litigate the issue again.

n addition$ his "laim is untimel#. 'his "ourt has regularl# held that M0 C*0E C'&. >+0

P-*C. 6:@1;:$ %hi"h states that IaQn a"tion for assault$ li!el$ or slander shall !e filed %ithin one #ear

from the date it a""ruesK applies euall# to a"tions for !atter#. S&&&.."ob v. Mobl&$ 177/ +.&. 0ist

EB& :19:$ R: (0. Md. 177/) (IaQfter pointing out that Ms. Co!# had not alleged the intentional torts

of assault and !atter#$ !oth of %hi"h %ould !e !arred !# Mar#lands one #ear statute of limitations...K)

andMadison v. 2arford "nt,No. M>2@19@C3@119;$ R/: n. 45 (0. Md. ug. 9$ 9;14) (IaQssault and

/4


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!atter# "laims are su!?e"t to a one #ear limitation period under Mar#land la%. S&&M0. C*0EC'&.

>+0. P-*C. 6:@1;:.K).:1 *n the fa"e of the "omplaint the Plaintiff alleges that the in"ident involving the

alleged !atter# o""urred on >anuar# 7$ 9;19$ &C OO::@:8$ and therefore it falls %ell outside this statute

of limitations. 'herefore$ even if the "laim %as not pre"luded !# "ollateral estoppel$ an# "laim for

!atter# should !e dismissed !e"ause the statute of limitation had run out.

/. 'he Plaintiff 0oesnt Properl# &tate a Claim for ntentional nfli"tion of Emotional0istress.

s a preliminar# matter$ the Plaintiffs "laim for ntentional nfli"tion of Emotional 0istress

(IE0K) is also !arred !# "ollateral estoppel. 'he Plaintiff has filed a parallel suit against Mr. Walker

and four other 0efendants (k!ar$ ,oge$ M"Cain and IGim!erlin+nmaskedK). imb&rlin v. al'&r, &t

al.,No. 45;7883 (Md. Mont. Co. Cir. Ct. 9;1/). 'hat "omplaint also alleged that these five defendants

"ommitted the same tort against the same Plaintiff. *n >ul# 1$ 9;1/$ Mr. Gim!erlin lost that "laim on

&ummar# >udgment. 'his represents a determination$ on the merits$ that Mr. Walker and the other four

0efendants have not "ommitted that tort against him. Furthermore$ the grounds of that de"ision appl# to

:1'he reason for this is that in Mar#land la%$ the terms IassaultK and I!atter#K are deepl# !lended andoften "onfused. For instan"e4amb v. Stat&$ 74 Md. pp. /99$ /95 (1771)$ des"ri!es in great detail ho%the terms are treated the sameD

# %a# of informal (or sometimes even formal) shorthand$ !oth the "ase la% and thestatutor# la% freuentl# use the simple noun IassaultK to "onnote a "onsummated !atter#alone and at other times to "onnote the "om!ination of the in"hoate attempt to !eat or to!atter follo%ed immediatel# !# the "onsummation of that attempt. 'hus used$ IassaultK isa s#non#m for I!atter#K and is also a s#non#m for the "om!ined form Iassault and!atter#.K

'hus often assault is shorthand for a num!er of a"ts that in"lude %hat is in other states referred to as!atter#. S&&, &..,M0. C*0EC-M. W64@9;1(!) (defining IassaultK as Iassault$ !atter#$ and assaultand !atter#K)J Snd&r v. Stat&$ 91; Md. pp. 4


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all 0efendants in the instant "ase$ not simpl# those that the t%o "ases have in "ommon. s this "ourt

%ill see %hen e=amining the trans"ript the sole !asis of the summar# ?udgment %as the Plaintiffs failure

to offer an# eviden"e of emotional distress and thus the summar# ?udgment against him represents a

finding of fa"t that he has felt no emotional distress in the relevant period. 'his should !e suffi"ient to

dispose of the issue for all defendants.:9

Even if "ollateral estoppel didnt appl#$ the Plaintiff has failed to properl# plead the tort. n order

to state a "laim for E0$ the Plaintiff must allege suffi"ient fa"ts that$ if true$ %ould lead this "ourt to

!elieve that the "ondu"t is re"kless or intentional$ that it is e=treme and outrageous$ that it pro=imatel#

"aused the Plaintiffs alleged emotional distress$ and that su"h emotional distress is severe$ pro=imatel#

"ausing damage to the Plaintiff. Batson v. Shifl&tt$ 49: Md. 85/$


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dditionall#$ he has failed to allege e=treme and outrageous "ondu"t. 'he Plaintiff onl# alleges

t%o a"tions that "ould have pro=imatel#legall#"aused the Plaintiff harm and %as "arried out !# an#

of the 0efendantsD defamation in the form of alleged impli"ations of &W'ting and the alleged assault.

'he "laim that the Plaintiff re"eived threats of death and in?ur# "annot !e "onsidered !e"ause he has not

alleged that an# of 0efendants are the legal "ause of su"h threats. S&&, &..Brand&nb)r$47: +.&. at

//< (1787) (esta!lishing the legal standard for in"itement). ike%ise$ allegations that 0efendants have

"alled for him to !e sent !a"k to prison again%hi"h are onl# supported !# "on"lusor# allegations$

an#%a#%ould not amount to an#thing more than petitioning the government for a redress of

grievan"es$ %hi"h is prote"ted !# the First mendment. s noted earlier$ an# "laim that Mr. Walker

assaulted the Plaintiff is !arred !# "ollateral estoppel.

Even then$ the alleged defamation and alleged assault does not meet the standards for Ie=treme

and outrageous "ondu"t.K s the "ourt e=plained in2arris v. 6on&s, 951 Md. :8;$ :


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"ausation of his non@distress. For all of these reasons$ this "laim should !e dismissed %ith pre?udi"e.

:. Plaintiffs Claim for Civil Conspira"# Must Fail e"ause t is Not an ndependent 'ort

and ,e ,as Not Pled n# of the Elements of Conspira"#.

First$ under Mar#land la% there is no independent tort of "ivil "onspira"#. All&co Inc. v. 2arr

3 6&an&tt& &inb&r !o)ndation, Inc.$ 4/; Md. 1


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-I.

THIS COURT SHOULD DISMISS ALL CLAIMS +ITH PRE!UDICE.

n a ver# real %a#$ this "ourt has alread# impli"itl# de"ided that an# dismissal should !e granted

%ith pre?udi"e %hen it reiterated that Ino further amendment %ill !e permitted.K S&&etter *rder$ >une

9/$ 9;1/ (ECF No. 144) p. 1. When determining %hether to dismiss a "laim %ith pre?udi"e$ I"ourts

appl# the same standard as if a motion for leave to amend hadQ !een filed.K4or&n Data "or#. v. G


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enterprise e=isted$ that there %as a pattern of ra"keteering a"tivit# or that he %as in?ured in his !usiness

and propert# !# su"h a"tivit#. ,e has not even properl# alleged a single predi"ate a"t under 61781(1)

Moreover$ the Plaintiff has made nothing !ut the most "on"lusor# attempt to allege a violation of

61789(d) and the Plaintiff has not properl# alleged that 0efendant Fre# has violated /9 +.&.C. 61754.

Mean%hile$ the Plaintiff has not alleged a single violation of /9 +.&.C. 6175:(9) or (4)$ alternatel#

failing to allege appropriate invidiousl# dis"riminator# animus or a relationship to an# federal

pro"eeding$ meriting dismissal of the last of the Plaintiffs "laims under federal la% %ith pre?udi"e.

With the Plaintiff having failed to properl# allege a single violation of federal la%$ this "ourt no

longer has supplemental ?urisdi"tion over the state la% "laims$ and "an dismiss them for this reason.

dditionall#$ the Plaintiff has failed to state a "ause of a"tion for an# of the state la% "laims.

n "on"lusion$ all federal "auses of a"tion should !e dismissed$ %ith pre?udi"e$ for failing to state

a "laim for %hi"h relief "an !e granted. Mean%hile$ the state "laims should also !e dismissed for failing

to state a "laim for %hi"h relief "an !e granted or for %ant of ?urisdi"tion. n either "ase$ all state la%

"laims should !e dismissed %ith pre?udi"e$ and all other relief that is appropriate should !e granted to

0efendant Walker. Finall#$ in the name of ?udi"ial e"onom#$ su"h dismissals should !e granted to all

0efendants$ !e"ause ea"h of these arguments appl# %ith eual or greater for"e to them.

/7


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'uesda#$ >ul# 1:$ 9;1/ -espe"tfull# su!mitted$

aron >. Walker$ Es.3a arZ /5559reda"tedQreda"tedQreda"tedQaron>W

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Walker Memo in Support of MTD

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