Case 8:13-cv-03059-GJH Document 239 Filed 01/08/15 Page 1 of 8

UNITED STATES DISTRICT COURT

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Case No. GJH 13-3059

CONSOLIDATED REPLY TO PLAINTIFF'S RESPONSE TO MOTIONS TO DISMISS BY

Defendant Dan Backer (Backer) and DB Capitol Strategies PLLC ("DBCS"), through counsel,
submits this Consolidated Reply to Plaintiff Brett Kimberlins (Plaintiff) Response to Motions to
Dismiss by Dan Backer and DB Capitol Strategies PLLC. Plaintiff has failed to offer any meaningful
argument in opposition to Defendants Motions to Dismiss the Second Amended Complaint, nor
adequately pled his claims with the specificity required, and by his own admission is merely acting as a
vexatious litigant against his perceived enemies.1 Backer and DBCS asks this Court to enter an order
dismissing the Second Amended Complaint with prejudice, and award Backer and DBCS attorney fees
and costs and the previously requested sanctions against Plaintiff as a vexatious litigant.

Plaintiff publically stated, after the dismissal of much the same claims in a state court, [a]nd tomorrow, I can file another
lawsuit against them... It's going to be endless lawsuits for the rest of their lives." David Weigel, The Weirdest Story About a
Conservative Obsession, a Convicted Bomber, and Taylor Swift You Have Ever Read, (Aug. 8, 2014)
http://www.thedailybeast.com/articles/2014/08/30/the-weirdest-story-about-a-conservative-obsession-a-convicted-bomberand-taylor-swift-you-have-ever-read.html

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A. Plaintiff Fails to Offer Meaningful Opposition to Backer and DBCS's Motion to Dismiss
Plaintiff's sole response to Backer and DBCS's Motion to Dismiss the Second Amended
Complaint consists of one single paragraph of four sentences essentially claiming that DBCS and
Backer's arguments "do not deserve an extended response." (ECF No. 231 at 46). Plaintiff has filed fifty
pages and 15 Exhibits, none of which offer a meaningful opposition to, nor addresses in any way, let
alone with the specificity required under the federal rules and common law- Backer and DBCSs Motion
To Dismiss the Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) for
failure to state a claim, Federal Rules of Civil Procedure 8, Local Rules 6(c), and in accordance with the
controlling state law as to limited liability, double recovery, the immunity of counsel, and the antiSLAPP statute. Instead, Plaintiff merely asserts, without citation or case law, that collateral estoppel and
res judicata do not apply because "neither Defendant Backer nor DBCS were parties to those suits, and
the issues in the various suits are completely different." (ECF No. 231 at 46).
As argued in Backer's Memorandum in Support of Backer's Motion to Dismiss the Second
Amended Complaint (ECF No. 190-1), and reincorporated herein as applicable to DBCS, the principles
of collateral estoppel and res judicata bar Plaintiff from re-litigating the same issues adjudicated in
Plaintiff's Maryland state court case, Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct.
2014), where the court directed a final judgment on the merits unfavorable to Plaintiff at the conclusion
of Plaintiffs case. (ECF No. 231-2). That court held that Plaintiff had not shown "one scintilla of
evidence in [that] case that the statements that were made by [the Defendants] were false" (ECF No.
231-2 at 266) and that the Plaintiff presented "absolutely no evidence in [that] case of exactly to what
the defendant is alleged to have done." (ECF No. 231-2 at 271).

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Maryland law allows a defendant here Backer and DBCS the protection of non-mutual
collateral estoppel to prevent a plaintiff from re-litigating an issue the plaintiff has previously litigated
unsuccessfully in another action against a different party. Culver v. Md. Ins. Commr,, 175 Md. App.
645, 653-54 (2007) (quoting Welsh v. Gerber Prods., Inc., 315 Md. 510, 518 (1989)). Because the
laundry list of predicate acts claimed by Plaintiff to concoct his RICO claim have been deemed not
actionable by the state court, Plaintiff cannot continue to rely on these same failed claims.
Plaintiff himself already admitted in a sworn statement that the issues decided in the prior state
action are similar if not in fact identical - to the ones presented in this action when Plaintiff requested
an extension of time in this case to see if he would prevail in the Maryland state case against
Defendants Walker, Hoge, McCain, and Akbar for defamation and false light, so that Plaintiff could
request an order [in the state court case] similar to that [Plaintiff] will request in any preliminary
injunction motion in this case. (ECF No. 175). The entirety of Plaintiff's claims in the Second Amended
Complaint rest solely on the allegations of defamation by the Defendants and the creative bootstrapping
that such unsupported and poorly pled allegations somehow constitute a RICO enterprise. (ECF No. 231
at 3). Even if Plaintiff's unsupported mere statements are taken as true, despite not being well pled as
required by Fed. R. Civ. P. 8, Plaintiff's allegations do not raise a claim susceptible to relief.
Plaintiff provides Exhibit 5 (ECF No. 231-6) to support his allegations that "Backer and DBCS
posted false information on their associated websites falsely accusing Plaintiff of swattings and other
defamatory information, and they raised huge sums of money based on those false narratives and
malicious lawsuits." Yet, Plaintiff fails to identify: 1) in what way he alleges an association between
Backer and DBCS and the websites in Exhibit 5, 2) what role either Defendant had in their preparation
or dissemination, 3) how either the information or perceived accusations in them are false or otherwise

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defamatory, 4) any evidence as to any fundraising, 5) what the legal import of false narratives are or
what they are, or 6) that there is any malice of any kind by Backer or DBCS in acting as attorneys in
then pending litigation against so notorious a criminal as to have a book written about him. Further, even
if Plaintiff's allegations as to some association are true - and Plaintiff does not allege that Backer or
DBCS actually authored such content, simply that there is some association - the Exhibit on its face
contains no "false information... accusing Plaintiff of swattings and other defamatory information" nor
does it provide any evidence as to the alleged "huge sums of money raised", nor any legal argument as
to how any of this is relevant or part of some globe-spanning RICO Enterprise.
B. Plaintiff Does Not Address Backer and DBCS's Protection under Attorney Immunity
Plaintiff does not address Backer and DBCS's immunity from these claims which arise solely as
a result of prior representation of Defendant Walker. Rather, Plaintiff admits this is the sole basis for
including Backer and DBCS as Defendants in this suit through the unsupported assertion that "Backer
and DBCS participated in this [alleged] RICO Enterprise by obstructing justice by filings pleadings... to
harass, intimidate and extort." (ECF No. 231 at 17). Advocates of parties, however, have absolute
immunity related to statements in the course of judicial proceedings, where those statements have some
relation to the proceedings, in order to foster the free and unfettered administration of justice. Korb v.
Kowaleviocz, 402 A.2d 897, 899 (Md. 1979).
The entirety of Plaintiffs factual allegations against Backer involve labels, conclusions and
formulaic recitation of the elements of a cause of action, and naked assertions devoid of further factual
enhancement. Although Plaintiff mis-states the number of suits in which Backer and/or DBCS served as
counsel to Defendant Walker (ECF No. 231 at 9 18), DBCS and Backer filed and/or served as counsel
in two previous suits on behalf of Defendant Walker against Plaintiff in good faith, despite any resulting

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dismissals. See In re Kunstler, 914 F.2d 505, 518 (4th Cir. 1990) (where a complaint is filed to vindicate
rights in court, and also some other purpose, a court should not sanction counsel so long as the added
purpose is not undertaken in bad faith and does not eliminate a proper purpose). Plaintiff attempts to use
the transcript of one of the dismissals as evidence of Backer and/or DBCS's alleged RICO participation;
however, Plaintiff fails to mention that Defendant Walker initially brought the Virginia claim pro-se
before obtaining representation from DBCS. While both cases, in which DBCS represented Walker,
were dismissed, no sanctions were imposed by the court and both courts recognized "it unwise to
intervene in the bitter political disputes between the parties" and allow the courts to be used as a
springboard for the excessive energies of the litigants. (ECF No. 231-16 at 5). Further, Plaintiff has
provided no evidence or case law to support the unsupported, and unsupportable, allegation that any
such suits constitute participation in a RICO enterprise or actionable conduct under any claims in the
Second Amended Complaint.
Plaintiff also references ECF No. 231-9, a document hold letter sent in a previous case against
Plaintiff, as evidence of some alleged defamation by DBCS and/or Backer and alleged participation in
the imaginary RICO enterprise. However, Plaintiff does not specify what about the letters was
defamatory. Discovery tools are commonly used in the course of litigation to preserve evidence that may
be discoverable. Pursuant to Fed. R. Civ. P. 26(b)(1), parties have the right to a broad scope of discovery
including "any nonprivileged matter that is relevant to any party's claim or defenseincluding the
existence, description, nature, custody, condition, and location of any documents or other tangible things
and the identity and location of persons who know of any discoverable matter."
Instead, Plaintiff wastes this Court's limited time and resources by refusing to dismiss Backer
and DBCS from this suit in order to further expand his vexatious litigation. By including Backer and

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DBCS in this suit solely on the basis of Backer's previous representation of Defendant Walker, Plaintiff
perpetuates his intent to "file endless lawsuits for the rest of [the Defendant's] lives." David Weigel, The
Weirdest Story About a Conservative Obsession, a Convicted Bomber, and Taylor Swift You Have Ever
Read, (Aug. 8, 2014), http://www.thedailybeast.com/articles/2014/08/30/the-weirdest-story-about-aconservative-obsession-a-convicted-bomber-and-taylor-swift-you-have-ever-read.html.
C. Plaintiff Does Not Address His Attempt to Double Recover from Backer and DBCS
Plaintiff fails to address Backer and DBCSs arguments with respect to Plaintiffs attempt at
double recovery. Plaintiff states that "DBCS is responsible for [Backer's] acts" as DBCS is controlled by
Backer. (ECF No. 231 at 22). As such, if this Court does not dismiss this matter against both DBCS and
Backer, Backer should be dismissed from this case in his individual capacity. Plaintiff's Second
Amended Complaint alleges no new and independent injury allegedly suffered by an act of Backer that
was not alleged in Plaintiffs claims against DBCS. Nor has Plaintiff stated the kind of facts necessary to
state a claim for piercing the corporate veil. See Travel Comm., Inc. v. Pan Am. World Airways, Inc. 603
A.2d 1301, 1317 (Md. Ct. Spec. App. 1992) (holding no Maryland courts have pierced the corporate veil
to enforce a paramount equity but only in the case of fraud). Plaintiff may not recover against both
DBCS and Backer for the same alleged acts, if actionable. See Underwood-Gary v. Matthews, 785 A.2d
708, 712 (Md. 2001) (To prevent double recovery and unjust enrichment, a plaintiff is entitled to one
compensation for his alleged loss which in turn prevents further action against another for the same
damages).
C. Plaintiff Does Not Have Standing to Raise Claims of Justice Through Music
To the extent any claim may exist in this thicket of frivolity, on its face such claim is not
Plaintiff's. Plaintiff is attempting to bootstrap into his own allegations those of his employer, Justice

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through Music (ECF No. 231 at 10), and that somehow ECF No. 231-9, the document hold letter, caused
the recipient to cease funding to the "non-profits" (ECF No. 231-8 at 1). However, Plaintiff has no
standing to raise claims related to Justice through Music, which is not a party to this suit, and his alleged
claim, insofar as it actually affects him, would necessarily be predicated on patently unlawful personal
inurement by Plaintiff through a tax-exempt organization. Other than Plaintiff's continued overbroad and
ill-pled allegations-by-declaration throughout his pleadings, Plaintiff proffers no evidence, case law, or
statute in support of his allegations that "Backer attempted to use a malicious federal lawsuit on behalf
of Aaron Walker to have [Plaintiff] fired from [his] employment." (ECF No. 231-8 at 1). Plaintiff
provides no factual allegations other than his bald-faced assertion that Backer and/or DBCS "took over
fundraising" of the National Bloggers Club, which is devoid of any reference to actual events (ECF No.
231 at 22). See United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979) (holding a court
need not accept allegations in the complaint that are conclusory factual allegations devoid of any
reference to actual events"). Even if taken as true, Plaintiff provides no factual allegations that any such
fundraising raises a right to relief beyond a speculative level and certainly is not more than "an
unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
CONCLUSION
WHEREFORE, Backer and DBCS asks this Court to enter an order dismissing the Second
Amended Complaint with prejudice, and award Backer and DBCS attorney fees and costs, the
previously requested sanctions against Plaintiff as a vexatious litigant, and such additional relief as the
Court deems just.

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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
[email protected]
Bar No. 802079
_/s/_______________________________
Thomas J. Koukolis
Parker, Simon, & Kokolis, LLC
110 North Washington Street, Suite 500
Rockville, Maryland 20850
301-656-5775 Office
301-656-7834 Fax
[email protected]
Bar No. 16728
Counsel for Dan Backer and DB Capitol Strategies PLLC
Dated: January 8, 2015

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UNITED STATES DISTRICT COURT

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Case No. GJH 13-3059

CERTIFICATE OF SERVICE
I hereby certify that, on this Thursday, January 8, 2015, a true and correct copy of the foregoing
Consolidated Reply to Plaintiff's Response to Motions to Dismiss by Dan Backer and DB Capitol
Strategies PLLC was electronically filed in this case and a copy was emailed, by previous agreement of
the Parties, to Plaintiff and Defendants Hoge, McCain, 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
[email protected]
Bar No. 802079
_/s/_______________________________
Thomas J. Koukolis
Parker, Simon, & Kokolis, LLC
110 North Washington Street, Suite 500
Rockville, Maryland 20850
301-656-5775 Office
301-656-7834 Fax
[email protected]
Bar No. 16728
Counsel for Dan Backer and DB Capitol Strategies PLLC