IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY MARYLAND BRETT KIMBERLIN, Plaintiff, v. No. 403868V NATIONAL BLOGGERS CLUB, et al Defendants. PLAINTIFF'S SUPPLEMENTAL RESPONSE TO DEFENDANT WALKER’S MOTION TO DISMISS AND MOTION FOR PARTIAL SUMMARY JUDGMENT Now comes Plaintiff Brett Kimberlin and files this supplemental response to Defendant Walker's Motion to Dismiss and Motion for Partial Summary Judgment in light of this Court’s December 8, 2015 hearing on those motions. There are genuine issues of material dispute and the law does not support dismissal or summary judgment. 1. Apparently, the December 8" hearing was expedited because Defendant Walker filed an anti-SLAPP request for an immediate hearing pursuant to Courts and Judicial Proceeding 5-807(d)(1), which states that where a defendant argues anti-SLAPP, “the court shall hold a hearing on the motion to dismiss as soon as, practicable.” 2. However, Defendant Walker did nct even argue anti-SLAPP at the hearing and he candidly admitted that that he used his anti-SLAPP motion to get the hearing so he could argue other aspects of the motion to dismiss. This constitutes a blatant misuse of the anti-SLAPP statute and it warrants the Court’s condemnation. 3. BATTERY: Plaintiff hereby formally provides the Court with the Maryland Court of Special Appeals decision holding that the civil tortof batterychas'd thtde-year statute of limitations rather than the one-year SOL argued by Defendant Walker. See Ford v. Douglas, 799 A. 2d 448 (2002). In fact, Ford specifically rejects one of the cases Defendant Walker relies on in his motion at 12-13. Ford also states that a trial court can consider battery as part of a tort of intentional infliction of emotional distress. 4. ANTI-SLAPP: Plaintiff cited two cases during the hearing that rejected anti- SLAPP motions by the defendants. Those cases are both from the United States District Court of Maryland and Plaintiff has attached them for the Court's consideration. Russell v. Krowne, No. DKC 2008-2468 (July 12, 2010), and Ugwuonye v. Rotimi, No. PJM 09-658 (July 30, 2010). Exhibits B and C. This Court previously denied anti-SLAPP m« ns by other defendants and relied on Judge Hazel's rulings that found that Plaintiff's pleadings were not filed in bad faith. 5. FALSE LIGHT INVASION OF PRIVACY: Plaintiff advised the Court that Defendant Walker's conduct constitutes at wasion of his privacy, and Plaintiff compared it to cases in which the Maryland Court of Appeals has found invasion of, privacy from bill collectors calling at all hours, coming unannounced to homes and threatening to have people arrested for crimes. As Plaintiff states in his Complaint and the attached affidavit, the campaign set into motion by Defendant Walker has resulted years of harassment of Plaintiff, intrusions into his privacy such as phone calls to his home at all hours, calls to his neighbors telling them that Plaintiffis a dangerous criminal, photos taken of him at his place of business, photos taken of him and his daughter at their home, numerous threats of death and bodily harm sent to Plaintiff electronically, and untold ettempts and threats by Defendant Walkerto have Plaintiff arrested for this or that crime which he then published in thousands of tweets and articles to portray Plaintiff in a false light. Defendant Walker contacted Plaintiff's employer and funders to falsely accuse Plaintiff of criminal activity. These “unreasonable intrusions” upon Plaintif?s seclusion constitute invasions of privacy. In Carr v. Watkins, 227 Md. 578 (1962), the Court of Appeals found an invasion of privacy from a person calling an employer with information that an employee had been charged with crimes years earlier. The court found that the employee had been cleared of the offense and therefore had an expectation of privacy. As the court noted, “a person who unreasonably and seriously interferes with another's interest in not having his affairs known to others of his likeness exhibited to the public is liable to the other.” at S86. The Court also noted that the defendants’ conduct, even though conducted orally, was akin to debt collectors who harassed people with calls to employers and extreme publicity. See Summit Loans v. Pecola, 265 Md. 43 (1972), followed Carr, finding an invasion of privacy by more than 200 calls by a creditor, complete with threats and threats of imprisonment. In Plaintiff's case, he has repeatedly asked Defendant Walker to leave him alone to no avail. The Maryland Court of Appeals has noted that the essence of an invasion of privacy complaint is the right of a plaintiff “to be let alone.” Household Finance Corp. v. Bridge, 252 Md. 531, 537 (1969). 6. CONSPIRACY: Defendant Walker argued that he should not be responsible for some of the conduct committed by his co-defendants. However, the Court of, Appeals in Mackey v. Compass Marketing, Inc, 391 Md 117 (2006), held that co-conspirators are “agents” under Maryland law and therefore responsible for the actions of their con-defendants 7. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: As noted above, when a battery occurs, it can be considered a factor in a claim for Intentional Infliction of Emotional Distress. Ford, v. Douglas, 799 A.2d at 452. In Ford, the Court reversed a denial of Intentional infliction of Emotional Distress, and noted that the Plaintiff alleged both battery and a multi year campaign of threats and harassment. Id, In the instant case, Plaintiff has alleged battery and a four-year campaign of threats and harassment. Therefore this issue should be heard by a jury. 8. RESJUDICATA: Defendant Walker's reliance on res judicata is without merit, and his position at the hearing would actually cause more litigation rather than less. He said that this Court should not consider the fact that the Kimberlin v. Walker case is on appeal, and that if that czse is reversed and this case is dismissed on res judicata grounds, then Plaintiff could retry both together. This is absurd. The Court of Special Appeals has that case before it on the merits. The case has three defendants that are the same in this case. The issues are different, the allegations are different, the time frame is different, and the number of Defendants is different by a factor of four. Moreover, Plaintiff could not have brought the instant claims in the original federal suit because they were all surrounding the issue of swatting, and Plaintiff sued in federal court because he alleged claims under federal RICO, 18 USC 1961, and federal civil rights violations under 42 USC 1983 and 1985(2). See Plaintiff's affidavit attached as Exhibit A.9. INTERFERENCE WITH PROSPECTIVE BUSINESS AND WITH BUSINESS RELATIONS Plaintiff's Complaint, which must be accepted as true, states that Defendant Walker, through his false statements on the Internet and his outrageous conduct toward Plaintiff, tried to have him fired based on false information, contacted his, funders with false accusation of crimes in order to shut off his employer funding, and interfered with his future economic prosperity. These are sufficient to make a claim of interference with business relations and prospective advantage. A breach of contract is not required in these cases. See Bagwell v. Peninsula Regional Medical, 106 (1995) (the tort commonly called interference with prospective advantage or with business relationships “lies where the wrongful conduct interferes with the plaintiffs existing or anticipated economic relationships, notwithstanding a breach of contract.”). The Complaint in the instant case alleges that Defendant Walker wanted to cause Plaintiff's termination from employment and completely shut off his non profit employer's access to funding from foundations and the community. This is enough to submit to a jury. 10. APPROPRIATION OF LIKENESS: ?laintiff has alleged that Defendant Walker, jointly and severally, used Plaintiffs likeness to raise tens of thousands of dollars by falsely accusing Plaintiff of crimes, using Plaintiffs name in his articles, tweets and headlines, and Plaintiff's photo, many times photo shopped, on his blog and his Twitter account. This amounted to unjust enrichment using Plaintiff's name. “A person who receives a benefit ty reason of an infringement of another person's interest, or of loss suffered by the other, owes restitution to him in the manner and amount necessary to prevent unjust enrichment.” Berry & Gould, P.A. v.Berry, 360 Md. 142, 151, 757 A.2d 108, 113 (2000) (quoting Restatement (Second) of Restitution § 1 (Tentative Draft No. 1, 1983). "The restitution claim... is not aimed at compensating the plaintiff, but a: forcing the defendant to disgorge benefits that it would be unjust for him to kee] Wherefore, for all the above reasons, and accepting the allegations of the Complaint as true as corroborated by the attached affidavit, this Court should deny Defendant Walker's Motion to Dismiss and his Motion for Partial Summary Cheon submitted, \ Certificate of Service Judgment. I certify that I mailed or emailed a copy of this motion to the lawyers and pro se defendants in this case this 9 day of December, 2015. aCeAFFIDAVIT 1, Brett Kimberlin, swear that the following is true and correct under penalty of perjury. 1. The attack campaign set into motion by Defendant Walker has resulted years of harassment of me, intrusions into my privacy such as phone calls to my home at all hours, calls to my neighbors telling them that | am a dangerous criminal, photos taken of me at my place of business, photos taken of me and my daughter at their home, numerous threats of death and bodily harm sent to me electronically, and untold attempts and threats by Defendant Walker to have me arrested for this or that crime which he then published in thousands of tweets and articles to portray me in a false light. Defendant Walker contacted my employer and funders to falsely accuse me of criminal activity. I have repeatedly, orally and in writing, asked Defendant Walker to leave me alone. 2. The instant case and the case of Kimberlin v. Walker present separate and distinct claims, with only three overlapping defendants. There were almost two dozen defendants in the instant case and the complaint is focused around false swatting allegations. The Kimberlin v. Walker is an entirely different case that is on appeal and raises serious legal questions. I have a strong chance of reversal. 3. The claims in this case could not have been brought in Kimberlin v. Walker because this case was originally filed in federal court due to the fact that it raised three claims under federal law, including RICO and two federal civil rights violations. One of those claims under 432 USC 1983, was upheld, and is presently in the discovery stage. Ge Ik4. Defendant Walker has interfered with my employment by trying to have me fired on the basis of his false statements and his false allegations of crimes. He has filed false criminal charges against me in order to publish that I have been so charged in the hope of ruing my business opportunities. Through his lawyer, he has contacted at least one foundation and falsely told them that I was engaging in criminal activity through my employment in order to frighten the foundation from funding my employer. 5. Defendant Walker has made false allegations on his blog and Twitter that | have committed recent crimes, and he used those false statements to raise significant funds for himself and Defendant National Bloggers Club. He has photo- shopped my picture on his blog and on Twitter in order to raise money for himself, and he has used my name in titles of his blog posts to drive traffic to his website and raise his rankings on Google. I never gave Defendant Walker permission to use my name or likeness for any purpose. 6. Ihave suffered extreme emotional distress from Defendant Walker's mull year campaign of harassment. The phone calls and online threats of death and injury are objectively unreasonable, as are the false allegations of crimes and constant threat of arrest. I have been under siege and lived in such fear that | had to alter my children’s activities and had to install 24/7 recordable security cameras in my home and business. This harassment has led to sleepless nights, marital discord, therapy for my eldest daughter, and bullying from neighbors and others. 7. I saw Defendant Walker come to Maryland dozens of times over the past four years. On one occasion, he came to a court hearing and then committed battery onme and took my iPad from me in the Circuit Courthouse. Asa result, I went to an emergency clinic and the doctor there sent me to the Emergency Room at Suburban Hospital where I was treated for a contusion to the eye, possible concussion, and back pain. 8. | filed this Complaint in good faith to remedy the violations of intentional torts under Maryland law. Judge Hazel stated that the original federal complaint was not filed in bad faith. Dated this 9% day of December, 2015 _BretEPHRAIM UGWUONYE, Plaintiff, f be re Ae # : OLUWOLE ROTIM, et Defendants. Civil No PJM 08-658, ms axe \j United States District Court, D. Maryland. July 30, 2010. MEMORANDUM OPINION PETER J. MESSITTE, District Judge. Pro se Plaintiff Ephraim Ugwuonye has sued Oluwole Rotimi, Omoyele Sowore, Domain by Proxy nc. and Mobolaji Aluko, alleging defamation, invasion of privacy and negligence. Rotimi, Domain by Proxy, Inc. and Aluko have previously been dismissed from the case. [1 Sowore's Motion to Dismiss [Paper No. 43] is now before the Court, as is Ugwuonye's Motion to Amend the Complaint [Paper No. 47} Having considered the pleadings, the Court DENIES the Motion to Dismiss [Paper No. 43] and GRANTS the Motion to ‘Amend the Complaint [Paper No. 47], Ugwuonye is @ Nigerian citizen residing in Maryland who is licensed as an attorney inthis state. Sowore is a Nigerian citizen residing in New York and isthe founder of Saharareporters.com, a website which provides "commentaries, features, [and] news reports from a Nigerian-African perspective."@l In March of 2009 Saharareporters.com published an article entitled "Property Scandal Rocks Nigerian Embassy in Weshington D.C.; Former Ambassador Obiozor Fingered.” Ugwuonye alleges that this article contained numerous falsehoods with respect to him, specifically, that the atcle falsely stated that there was fraud inthe sale of various properties ofthe Nigerian Embassy, including two properties located in Maryland and that Ugwuonye was involved. The article, he submits, suggests that various of the property transactions may not have been properly reported and that at least one property was soldat a price far exceeding its actual va. Ugwuonye alleges that the article falsely stated that he improperly refused to refund unearned fees to the Embassy of Nigeria, withheld and misappropriated the tax refunds of é client, and mischaracterized the circumstances under which he was found to have violated the Rules of Professional Conduct by the Maryland Attomey Grievance Commission. According ‘to Ugwuonye, the various falsehoods published in the article were the result of an ongoing campaign by Rotimi to engage joumalists to regulary attack the credibility of the Government of Nigeria, as well as Ugwuonye's law firm. In an affidavit ‘accompanying his Opposition to the Motion to Dismiss, Ugwuonye states that Sowore had several meetings with Rotimi at Rotimi residence in Potomac, Maryland, at which time Sowore allegedly received documentation from Rotimi that Rotimi had obtained from the Nigerian Embassy In his Motion to Dismiss, Sowore argues that the Court lacks personal jurisdiction over him, or in the alternative, that the ‘case should be dismissed or stayed as a strategic lawsuit against public participation ("SLAPP"), pursuant to Maryland's "Anti-SLAPP" Statute. See Maryland Courts and Judicial Proceedings Code Ann. § 5-807(d)(1) (2008). Rotimi thereafter filed his Motion to Amend the Complaint, Ex Ble \ { CHRISTOPHER RUSSELL, ET AL., v. AARON KROWNE, ET AL. Civil Action No. DKC 2008-2468, United States Dis:rict Court, D. Maryland. July 12, 2010. MEMORANDUM OPINION DEBORAH K. CHASANOW, District Judge. Presently pending and ready for review in this defamation case are (1) the motion to dismiss pursuant to Maryland Code Annotated, Courts and Judicial Proceedings § 6-807 filed by Defendants Implode-Explode Heavy Industries, Inc. and Krowne Concepts, Inc. (Paper 58), and (2) a motion to join Defendants’ motion to dismiss filed by Defendant Krista Railey (Paper 71). The issues are fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant Railey's motion will ke granted and Defendants’ motion to dismiss will be denied |. Background ‘On January 24, 2007, Plaintiff Penobscot Indian Nation ("PIN"), a federally recognized Native American government and ‘municipality of the State of Maine, created The Grant American Program ("GAP"). (Paper 1 | 1). GAP Is a national program that gives down payment assistance funds to low to moderate income families so they can purchase a home. Although GAP is entirely owned by PIN, Plaintiff Global Directs Sales, LLC ("GDS") operates and manages the program. GDS is a Maryland limited liability company, and its principals, Plaintiffs Christopher Russell and Ryan Hil, are residents of Maryland. Defendant Implode-Explode Heavy Industries, Inc. ("IEH|") and Krowne Concepts own and operate the "Mortgage Lender Implode-O-Meter” and the website www.ml-implode. com (collectively the "Website’) Between June and August 2008, Lorena Leggett, on behaf of Defendant IEHI, solicited Plaintiff GDS to advertise on the website. (/d. 190). GDS declined to advertise on the Website, (Id. 113). Defendant Krista Railey, @ California resident, is @ forum-moderator on the Website. (d. $f 13, 52). On or about September 15, 2008, Reiley posted an article on the Website that she had written about Plaintiffs. (Id. ff 36, 51). While Railey was working on the article, she conducted an interview of Russell. (/d. 1150). (On September 19, 2008, Plaintiffs filed a complaint against Defendants for defamation, libel, and unfair business practices, (Paper 1). Plaintiffs contend that the article contained a number of untrue and defamatory statements. (Id. 37). Plaintiffs allege that the article was published as retaliation because GDS declined to advertise on the Website. (/d. 159) (On November 18, 2008, Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), arguing that Defendants Krowne, Owings, and Leggett had insufficient connections to Maryland forthe court to ‘exercise personal jurisdiction over them and that Plants failed to state a claim against these three Defendants. (Paper 31), The court found that personal jurisdiction was lacking over Defendants Krowne, Owings, and Leggett and dismissed Plaintiff’ complaint for lack of personal jurisdiction. (Paper 48). On February 19, 2010, the court dismissed without prejudice Defendant Streamline Marketing, Inc. (Paper 85). ‘On November 11, 2009, Defendants implode-Explode Heavy Industries, Inc, and Krowne Concepts, Inc. fled a motion to dismiss pursuant to Maryland Code Annotated, Courts and Judicial Proceedings § -807. (Paper 59). Defendant Railey filed a motion to join Defendants’ motion to dismiss on November 11, 2008, which willbe granted. (Paper 71). Ex <