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NO. 15-1412
In The
United States Court of Appeals
For The Fourth Circuit
BRETT KIMBERLIN
Appellant,
v.
NATIONAL BLOGGERS CLUB et al
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION
INFORMAL RESPONSE BRIEF OF APPELLEES
DAN BACKER AND DB CAPITOL STRATEGIES
PLLC

CHRISTINA P. SIROIS
DB Capitol Strategies PLLC
203 South Union Street Suite 300
Alexandria, Virginia 22314
(571) 207-6451 Phone
COUNSEL FOR APPELLEES
DAN BACKER AND
DB CAPITOL STRATEGIES PLLC

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TABLE OF CONTENTS
Table of Authorities iii
Jurisdictional Statement.... 1
Statement of the Issues..... 1
Statement of the Case....... 2
Statement of the Facts.. 3
Summary of Arguments... 5
Statement of the Standard of Review... 5
Arguments.... 6
1. The District Court did not err in dismissing the complaint as related to
Appellants pro se status 6
2. The District Court did not err in dismissing two counts of the complaint
under Fed. R. Civ. P. 12(b)(6) prior to discovery.. 9
Conclusion.. 10
Statement with Respect to Oral Argument. 11
Certificate of Compliance... 12
Certificate of Service.. 13

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TABLE OF AUTHORITIES
Case Law
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) .. 5,6,7
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) ... 5,6,9
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.
2011) . 5,9
Erickson v. Pardus, 551 U.S. 89, 94 (2007) 5
Hughes v. Rowe, 449 U.S. 5, 9 (1980) . 7
Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013) .. 3,8
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). .. 6

Statute
28 U.S.C. 1291... 1

Other Sources
David Weigel, The Weirdest Story About a Conservative Obsession, a Convicted
Bomber, and Taylor Swift You Have Ever Read,
http://www.thedailybeast.com/articles/2014/08/30/the-weirdest-story-aboutaconservative-obsession-a-convicted-bomber-and-taylor-swift-you-have-everread.html (last updated August 30, 2014) ... 3,8

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APPELLEES DAN BACKER AND DB CAPITOL STRATEGIES PLLC

CONSOLIDATED INFORMAL RESPONSE BRIEF
Appellees Dan Backer (Backer) and DB Capitol Strategies PLLC
("DBCS"), through counsel, submit this Consolidated Informal Response Brief to
Appellant Brett Kimberlins (Appellant) Informal Opening Brief, Appellants
Lead Brief.
JURISDICTIONAL STATEMENT
This Court does not have jurisdiction pursuant to 28 U.S.C. 1291 because a
final decision from the relevant District Court case has not yet been issued. 28 U.S.C.
1291. Should this Court find it does have proper jurisdiction, Appellees do not
challenge the exercise of such jurisdiction in order to efficiently resolve this matter
with finality.

STATEMENT OF THE ISSUES

Appellant presented two issues for review by this Court:
1. Whether the District Court erred in dismissing two counts of the complaint
due to Appellants pro se status; and
2. Whether the District Court erred in dismissing two counts of the complaint
under Fed. R. Civ. P. 12(b)(6) prior to discovery.

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STATEMENT OF THE CASE

Appellant filed his first complaint in the underlying matter against over twenty
(20) defendants on the allegation that the defendants all conspired together in some
racketeering enterprise. During the pleading stage alone, the case consisted of over
260 docket filings (ECF No. 263); however, Appellees will highlight the essential
filings below.
On October 17, 2013, Appellant filed his first amended complaint, consisting
of fifty one (51) pages, alleging claims for relief under the Racketeer Influences and
Corrupt Organizations Act under 18 USC 1962(c) and 18 USC 1962(d) allegedly
involving mail fraud under 18 USC 1341, wire fraud under 18 USC 1343,
obstruction of justice under 18 USC 1503, 1510, and 1511, retaliation of a witness
and victim under 18 USC 1513, extortion under 18 USC 1951, and money
laundering under 18 USC 1957, Defendant Freys alleged violation of the Civil
Rights Act of 1866 under 42 USC 1983, violations of the Ku Klux Klan Act of
1871 under 42 USC 1985, fraud and negligent misrepresentation, defamation,
false light invasion of privacy, and intentional infliction of emotional distress. (ECF
No. 2).
On March 7, 2014, Appellant filed his second amended complaint, consisting
of eighty two (82) pages, maintaining allegations of a vast global conspiracy and
substantially similar claims for relief but adding claims for interference with
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business relations, interference with prospective economic advantage, battery

against Defendant Walker, and conspiracy to commit state law torts. (ECF No. 1003).
On March 17, 2015, the District Courts granted Appellees Backer and DBCS
motion to dismiss, along with all other Appellees except Frey in part as to one count.
(ECF No. 263).
Appellant now appeals the dismissals as to the two federal claims for relief
except as to the ongoing litigation against Defendant Frey.

STATEMENT OF THE FACTS

Appellants underlying suit is the latest in a protracted series of disputes
between and among the parties here. (ECF No. 97 at 1). Appellant, immediately
after his Maryland Circuit Court case against several defendants also sued in the
instant case, and for substantially the same conduct, was dismissed, openly told a
reporter [a]nd tomorrow, I can file another lawsuit against them. And now I know
what to do. Its going to be endless lawsuits for the rest of their lives. Kimberlin v.
Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013); David Weigel, The
Weirdest Story About a Conservative Obsession, a Convicted Bomber, and Taylor
Swift You Have Ever Read, http://www.thedailybeast.com/articles/2014/08/30/the-

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weirdest-story-about-aconservative-obsession-a-convicted-bomber-and-taylorswift-you-have-ever-read.html (last updated August 30, 2014).

In Appellants second amended complaint, Appellant offers eight two (82)
pages of conclusory factual allegations with no reference to actual events. (ECF No.
100-3). Appellant alleged that the defendants all conspired together in some
racketeering enterprise. The exact actionable conduct alleged was unclear even
after Appellants two amended complaints, as noted by the District Courts opinion.
(ECF No. 263).
In his second amended complaint, Appellant merely recites the elements of
the claims for relief and provides no factual basis or evidence of any specific
violations whatsoever. For example, in one instance, Appellant alleged that
[d]efendants conspired with each other to commit the state law tortious acts alleged
above. (ECF No. 100-3 281-83).
As to Appellees Backer and DBCS, Appellant failed to allege anything more
than Backer and DBCS acted within their role as an advocate to Appellee Walker in
previous litigation and that Appellees represented their client by issuing discovery
devices to potential witnesses during the course of that litigation. Appellant was not
able to show that Appellees actions were beyond the scope of their professional
attorney duties in that judicial proceeding.

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SUMMARY OF ARGUMENTS
The District Court properly dismissed Appellants complaint. Appellants pro se
status and his lack of discovery prior to dismissal does not constitute reversible error,
and this Court should affirm the District Courts order.

STATEMENT OF THE STANDARD OF REVIEW

An appellate court reviews de novo the District Courts grant of a motion to
dismiss for failure to state a claim. E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 440 (4th Cir. 2011). In ruling on a motion to dismiss, the district
court must accept as true all of the factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In considering the motion to dismiss,
the district court cannot consider outside documents beyond the complaint and its
attachments, without converting the motion to a motion for summary judgment,
which would constitute an error where the parties did not have reasonable
opportunity for discovery. Kolon Indus., 637 F.3d at 448-49.
Even assuming all the factual allegations are true, a complaint must contain
sufficient facts to state a claim that is plausible on its face. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). To show facial plausibility, a plaintiff must
plead factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A satisfactory claim for relief demand[s] more than an unadorned, the5

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defendant-unlawfully-harmed-me accusation. Id. A complaint is subject to

dismissal under Rule 12(b)(6) if it merely offers labels and conclusions or a
formulaic recitation of the elements of a cause of action [or] if it tenders naked
assertions devoid of further factual enhancement. Id. A court need not accept
allegations in the complaint that are conclusory factual allegations devoid of any
reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979).

ARGUMENTS
The District Court properly dismissed Appellants complaint. Appellants pro
se status and his lack of discovery prior to dismissal does not constitute reversible
error. Even assuming all Appellants factual allegations are true, Appellants
complaint failed to contain sufficient facts to state a claim that is plausible on its
face. Twombly, 550 U.S. at 570.
1. The District Court did not err in dismissing the Complaint as related to
Appellants pro se status
Regardless of Appellants pro se status, Appellant was still required to file a
complaint containing sufficient facts to state a claim that is plausible on its face.
Twombly, 550 U.S. at 570. Appellant was required to plead, at a minimum, factual
content that allows the court to draw the reasonable inference that the Appellees are
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liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Appellant failed to do so,
despite his twice amended complaint which resulted in eighty two (82) pages of
inartfully plead allegations.
Appellant primarily, and incorrectly, relies on pre-Twombly case law, quoting
Hughes v. Rowe, 449 U.S. 5, 9 (1980): [i]t is settled law that the allegations of such
complaint, however inartfully pleaded, are held to less stringent standards than
formal pleadings drafted by lawyers. Appellants Informal Opening Brief at 6.
However, even if such case law was applicable, Appellant conveniently leaves out
the remainder of the pre-Twombly holding which states [s]uch a complaint should
not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief. Id. at 10. Even under this standard, Appellant failed to plead any set of facts
which would entitle him to relief.
During the course of the litigation, however, the District Court gave Appellant
enormous leeway, allowed Appellant the opportunity to amend his original
complaint twice, and gave substantial extensions, including a three month extension
of time in which to file Appellants response to all Appellees motion to dismiss.
(ECF No. 162 at 3). The amount of leeway Appellant received allowed this particular
and notorious vexatious litigant to drag the case out for nearly a year and a half
without ever moving past the pleading stage.
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Additionally, Appellant is very familiar with the litigation process and the
standards required to state a claim. In fact, Appellant himself has admitted to his
familiarity with the legal process. Appellant, immediately after his Maryland Circuit
Court case against several defendants also sued in the instant case, and for
substantially the same conduct, was dismissed, openly told a reporter [a]nd
tomorrow, I can file another lawsuit against them. And now I know what to do. Its
going to be endless lawsuits for the rest of their lives. Kimberlin v. Walker, et al.,
No. 380966V (Md. Mont. Co. Cir. Ct.); David Weigel, The Weirdest Story About a
Conservative Obsession, a Convicted Bomber, and Taylor Swift You Have Ever
Read, http://www.thedailybeast.com/articles/2014/08/30/the-weirdest-story-aboutaconservative-obsession-a-convicted-bomber-and-taylor-swift-you-have-everread.html (last updated August 30, 2014). Appellant has been a party in over 100
legal actions. Appellees Mercury Radio Arts, The Blaze Inc, and Glenn Beck
Informal Response Brief at 5.
The District Court properly dismissed Appellants complaint. The mere
existence of Appellants pro se status does not make him immune to the barest of
pleading requirements. Holding a pro se litigant to such minimal standardsespecially one as well versed in litigation as this Appellant- certainly does not
constitute reversible error, and the limited authority cited by Appellant is inapt;

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presuming a bare scintilla of solicitousness by the court. Accordingly, this Court

should affirm the District Courts order.

2. The District Court did not err in dismissing two counts of the
Complaint under Fed. R. Civ. P. 12(b)(6) prior to discovery.
A complaint must contain sufficient facts to state a claim that is plausible on
its face. Twombly, 550 U.S. at 570. Only where the court converts a motion to
dismiss into a motion for summary judgment are the parties afforded a reasonable
opportunity for discovery. Kolon Indus., 637 F.3d at 448-49. The District Courts
opinion dismissing the Appellants complaint focuses solely on the deficiencies in
the Appellants complaint.
Because the District Court solely relied on the deficiencies in Appellants
complaint to warrant dismissal, the District Court did not err in dismissing the
complaint prior to discovery in the matter. Appellant admits he needed discovery to
be able to show all elements that the court found that Appellant did not adequately
plead. Appellants Informal Opening Brief at 8. Appellant seeks nothing more than
a fishing expedition to impose costs and the burden of litigation on the Appellees,
which Appellant has by his own admission sought to impose through his endless
stream of litigation.

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The District Court properly dismissed Appellants complaint for failure to

state a claim without allowing a discovery-fishing expedition, and this Court should
affirm the District Courts order.

CONCLUSION
For the reasons stated herein, Appellees Backer and DBCS respectfully
request that this Court dismiss Appellants appeal, award Appellees Backer and
DBCS costs under Fed. R. App. P. Rule 39 and grant Appellees Backer and DBCS
separately filed Motion for Sanctions for Filing a Frivolous Appeal.
Dated: June 3, 2015
Respectfully submitted,
/s/__________________________
Christina Pauline Sirois
DB Capitol Strategies PLLC
203 South Union Street Suite 300
Alexandria, Virginia 22314
(571) 207-6451 Direct
(202) 478-0750 Fax
csirois@dbcapitolstrategies.com

Counsel for Dan Backer and

DB Capitol Strategies PLLC

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CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)

1. Type-Volume Limitation: This brief complies with the type-volume
limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because this brief does not
exceed 16,500 words and contains 1966 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

2. Typeface and Type Style Requirements: This brief complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements
of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally
spaced typeface using Microsoft Word 2013 in fourteen point, proportionally
spaced, serif typeface, Times New Roman.
/s/__________________________
Christina Pauline Sirois
DB Capitol Strategies PLLC
203 South Union Street Suite 300
Alexandria, Virginia 22314
(571) 207-6451 Direct
(202) 478-0750 Fax
csirois@dbcapitolstrategies.com

Counsel for Dan Backer and

DB Capitol Strategies PLLC

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STATEMENT WITH RESPECT TO ORAL ARGUMENT

Appellees Backer and DBCS respectfully suggest that oral argument is not
necessary in this case. The legal issues are not novel, and oral argument likely
would not aid the Court in reaching its decision.

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CERTIFICATE OF SERVICE
I hereby certify that, on this Wednesday, June 3, 2015, a true and correct copy
of the foregoing Informal Brief was served on all parties or their counsel of record
through the CM/ECF system and was emailed, by previous agreement of the Parties,
to Appellant and Appellees Hoge, McCain, Stranahan, and Walker.

/s/_____________________________
Christina Pauline Sirois
DB Capitol Strategies PLLC
203 South Union Street Suite 300
Alexandria, Virginia 22314
(571) 207-6451 Direct
(202) 478-0750 Fax
csirois@dbcapitolstrategies.com

Counsel for Dan Backer and

DB Capitol Strategies PLLC

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