Backer Strikes Back

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Greenbelt Division

RESPONSE TO DEFENDANT KIMBERLIN’S MOTION AND MEMORANDUM IN SUPPORT

OF RULE 11 SANCTIONS AGAINST PLAINTIFF’S ATTORNEY DAN BACKER

*Admitted Pro Hac Vice on September 10, 2012

Case 8:12-cv-01852-JFM Document 32 Filed 11/27/12 Page 1 of 25

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TABLE OF CONTENTS

PRELIMINARY STATEMENT

LEGAL STANDARD

ARGUMENT

I. Rule 11 Sanctions are Meritless and Warrant the Award of Attorney’s Fees

because Counsel Fully Investigated the Claims before Filing the Complaint;

Defendant Kimberlin is Attempting to Test the Sufficiency of the Claims

and Trying to Intimidate Counsel from Pursuing this Suit

II. Counsel Performed a Thorough Investigation, Deriving Evidence

Through Multiple and Varied Sources Before Filing The Complaint

III. Defendant Kimberlin’s Federalism Concern is a Straw Man Argument

IV. Defendant Kimberlin’s Claims of Harassment are His Usual Tactic to

Distract from His Own Bad Acts

A NOTE ON ETHICS

CONCLUSION




TABLE OF AUTHORITIES

Cases Page(s) Attorney Grievance Comm’n of Maryland v. Patterson

Brubaker v. City of Richmond

Dome Patent L.P. v Permeable Techs., Inc.

Fiberglass Insulators, Inc. v. Dupuy

Hunter v. Earthgrains Co. Bakery

In re Kunstler

In re Franklin Nat'l Bank

In re Sargent

Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc

Kraemer v. Grant County

La Vay Corp. v. Dominion Federal Sav. & Loan Asso.,

Lucas v. Duncan

Martindell v. Int’l Tel & Tel. Corp.

Morris v. Wachovia Sec., Inc.




Palmieri v. New York

Codes, Regulations and Rules

Other Authorities

Kimberlin v. Walker

passim




Preliminary Statement







infra

Legal Standard

La Vay Corp. v. Dominion Federal Sav. & Loan Asso.,




Seeid

Hunter v. Earthgrains Co. Bakery

In re Sargent

In re Sargent

Brubaker v. City of Richmond

Seeid

no Id.

Morris v. Wachovia Sec., Inc.




Kraemer v. Grant County

In re

Kunstler

Id

Argument

Rule 11 Sanctions are Meritless and Warrant the Award of Attorney’s Fees because

Counsel Fully Investigated the Claims before Filing the Complaint; Defendant

Kimberlin is Attempting to Test the Sufficiency of the Claims and Trying to

Intimidate Counsel from Pursuing this Suit.

.” La Vay Corp.




Id.




Dome Patent L.P. v

Permeable Techs., Inc.

Lucas v. Duncan

infra




Counsel Performed a Thorough Investigation, Deriving Evidence Through Multiple

and Varied Sources Before Filing The Complaint










really

Id.







Defendant Kimberlin’s Federalism Concern is a Straw Man Argument.







Defendant Kimberlin’s Claims of Harassment are His Usual Tactic to Distract from

His Own Bad Acts.

See, e.g., Kimberlin v.

Walker

supra,




A Note on Ethics




See

Id.




Seealso

Id.

See, e.g., Martindell v. Int’l Tel &

Tel. Corp.

Id.

See

See also Attorney Grievance Comm’n of Maryland v. Patterson




See

i.e.

SeeGoodyear Tire & Rubber Co. v.

Chiles Power Supply, Inc Palmieri v. New York

); In re Franklin Nat'l Bank

Fiberglass Insulators, Inc. v. Dupuy

See e.g.




Conclusion

Relief Requested





CERTIFICATE OF SERVICE


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Case 8:12-cv-01852-JFM Document 32-1 Filed 11/27/12 Page 1 of 5













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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Greenbelt Division ____________________________________

)AARON WALKER )

)Plaintiff, )

)v. ) Civil Case No. JFM-12-1852

)BRETT KIMBERLIN, )JUSTICE THROUGH MUSIC, ) Billing Declaration VELVET REVOLUTION, all above )Defendants are located at )8100 Beech Tree Road, Bethesda, MD )Montgomery County AND )The Proprietors of the website “Breitbart’ )Unmasked )

)Defendant. )

____________________________________)

BILLING DECLARATION OF PLAINTIFF’S ATTORNEY DAN BACKER

Under penalty of perjury, I, Dan Backer, declare as follows:

1. I am writing this declaration to support the Response To Defendant Kimberlin’s Motion andMemorandum In Support Of Rule 11 Sanctions Against Plaintiff’s Attorney Dan Backer.(“Motion”).

2. I, and attorneys I directly and personally supervise, spent 68.75 total hours in the preparation anddrafting with respect this Motion. While billing judgment has been exercised, a substantialamount of time was necessary to properly research and reply to this frivolous and vexatiousMotion.

3. I am assessing my fees at $183.73 per hour, which is the statutory rate under the Equal Access toJustice Act (“EAJA”), 28 U.S.C. § 2412 (d)(2)(A). See also Thangaraja v. Gonzales, 428 F.3d870, 876-77 (9th Cir. 2005). While less than my hourly billing rate or that of the attorneys Isupervise, this is the rate that I would typically seek to recover in my principle area of practiceunder this statute where, as here, I am not billing the client. Having found no direct guidance onthis matter within the Rules or case precedent, I, of course, do not object if the Court determinesthis rate to be in excess of that typically awarded with respect to this type of matter.


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4. At a rate of $183.73 per hour, this amounts to a total of $12,631.44 in Attorney’s fees. Thisamount does not include time for which billing judgment was exercised. An itemized statement

of the time I spent on the case, and that of those attorneys I directly and personally supervised, based on my contemporaneous time records is attached to this Declaration.

5. I declare, under penalty of perjury, that the foregoing facts are true and correct to the best of myknowledge, and that any expressions of opinion are based on my best professional judgment.

November 27, 2012

Respectfully submitted,

_________/s/_______________________ Dan Backer, Esq.*209 Pennsylvania Avenue SE, Suite 2109Washington, DC 20003(202) [email protected]

Attorney for Plaintiffs





Summary of Hours For Rule 11 Sanctions Motion in Walker v. Kimberlin et al.

Clients: Aaron Walker

Date Activity Time Attorney

10/31/2012 Researched case law about Fed. R. Civ. P. 11 6.25 S

11/1/2012 Conducted further research into Rule 11 including local rules. 6.75 S

11/2/2012Discussed Implications of Defendant Kimberlin’s threat to file Rule 11motion 2.0 P & S

11/2/2012 Conducted Further Research into case law of standard on Rule 11 motion 2.25 S

11/5/2012 Began outlining response to Rule 11 motion 6.75 S

11/6/2012 Discussed possible ethical violations of Mr. Cohen in writing Rule 11 motion 3.0 P & S

11/7/2012 Continued outlining Rule 11 motion breaking up sections 6.5 S

11/8/2012 Drafted final Outline of Rule 11 motion 6.0 S

11/9/2012 Discussed Outline 3.0 P &S

11/12/2012 Discussed legal strategy 2.5 P & S

11/13/2012 Began drafting Response 7.0 S

11/14/2012 Continued drafting Response 6.75 S

11/15/2012 Discussed progress on Response and changes 4.0 P & S

11/16/2012 Finalized first draft of Response 6.0 S

TOTAL TIME 68.75

P = Principal AttorneyS = Subordinate Attorney


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