IN THE CIRCUIT COURT OF MARYLAND

FOR MONTGOMERY COUNTY

BRETT KIMBERLIN

Plaintiff,

v.
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HUNTON & WILLIAMS, LLP et al.,
Defendants.
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Case No. 420644-V

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DEFENDANT WILLIAM NICKLESSS
MOTION TO DISMISS COMPLAINT

Now comes, Defendant, William Kirk Nickless, by through undersigned counsel, moves
this Court to dismiss Plaintiff's Complaint pursuant to Maryland Rule 2-322(a) based upon; 1)
insufficient service of process; and 2) lack of personal jurisdiction. Based on these grounds
which are set forth more fully in the Memorandum of Law, which is incorporated here by
reference, dismissal of the Complaint is appropriate.

Respectfully submitted,

CRAIG D. ROSWELL
JOEL M. CELSO
NILES, BARTON & WILMER, LLP
111 S. Calvert Street, Suite 1400
Baltimore, Maryland 21202
(410) 783-6300
jmcelso@nilesbarton.com
Counsel for Defendant, William Nickless

IN THE CIRCUIT COURT OF MARYLAND

FOR MONTGOMERY COUNTY
BRETT KIMBERLIN

Plaintiff,

v.
*
HUNTON & WILLIAMS, LLP et al.,
Defendants.
*

Case No. 420644-V

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT

WILLIAM NICKLESSS MOTION TO DISMISS
Defendant, William Kirk Nickless (hereinafter Mr. Nickless) pursuant to Maryland
Rule 2-322(a), by and through his undersigned counsel, files this Memorandum of Law in
Support of his Motion to Dismiss Plaintiffs Complaint for; 1) insufficient service of process;
and 2) lack of personal jurisdiction, and in support thereof, states as follows:
INTRODUCTION
Plaintiff is a pro se litigant and claims to be the director of Justice Through Music, a
Maryland based non-profit which uses music to encourage young people to become involved
with civic participation.1 On March 16, 2015, the Plaintiff filed suit in United States District
Court in the District of Maryland against twenty-one separate defendants, including Mr.

Plaintiff is, in fact, a serial litigant. Since 2010 he has filed at least four other cases in this Court including
Kimberlin v. National Bloggers Club, et al., No. 403868V (2015); Kimberlin v. Home Depot Inc. et al., No.
401958V (2015); Kimberlin v. Aaron Walker et al., No. 380966V (2013); and Kimberlin v. Anonymous Cyber
Stalker, et al., No. 339254V (2010). He recently sued Senator Majority Leader Mitch McConnell in federal court.
See Kimberlin v. McConnell, et al., No. 16-cv-01211-GJH (D. Md. 2016). He has filed numerous other lawsuits in
federal courts in Maryland and District of Columbia as well. See Kimberlin v. The Home Depot, Inc. et al., No. 15cv-01416-TWT (D. Md. 2015); Kimberlin v. National Bloggers Club, et al., No. 8:13-cv-03059-PWG (D. Md.
2013); Kimberlin v. Kimberlinunmasked, No. 13-cv-02580-RWT (D. Md. 2013); Kimberlin v. Wilson, et al., No.
01-2100 (RMU) (D.D.C. 2001); Kimberlin v. Dept. of Justice and U.S. Parole Commn, No. 8:98-cv-00730-AW (D.
Md. 1998); Kimberlin v. U.S. Parole Commn, et al., No. 8:97-cv-03829-AW (D. Md. 1997).

Nickless.2

The District Court dismissed the action on March 29, 2016. Shortly thereafter, on

April 28, 2016, the Plaintiff filed a nearly identical suit in this Court against eighteen separate
defendants, including Mr. Nickless. The other named defendants in both suits include attorneys,
software engineers, law firms, and even the United States Chamber of Commerce.
The Plaintiff alleges, amongst other things, that the defendants engaged in a coordinated
years-long conspiracy whereby they formed two teams to defame and harass the Plaintiff and
harm his business relations by attempting to destroy his livelihood. The Plaintiffs allegations
against Mr. Nickless are that he used a Twitter account to post defamatory statements about the
Plaintiff online and portray him in a false light, and that he conspired with the other defendants
to intrude on his privacy. After filing suit, the Plaintiff failed to properly serve Mr. Nickless
pursuant to the Maryland Rules. Mr. Nickless lacks the minimum contacts in Maryland required
for Maryland courts to exercise personal jurisdiction over him. Accordingly, Mr. Nickless
respectfully requests that this Court dismiss the Complaint as it pertains to him.
FACTS
Mr. Nickless is a resident of the State of Washington with a home address of 1761
George Washington, Richland, WA 99354. Complaint 18. Mr. Nickless currently works at the
the Pacific Northwest National Laboratory (PNNL). Exhibit 1, Nickless Affidavit (hereinafter
Affidavit) at 3. Mr. Nickless has worked at PNNL since April, 2004. Id. PNNL is located
in the State of Washington at 902 Battelle Blvd., Richland, WA 99352. Complaint at 17.
On April 28, 2016, the Plaintiff filed a Complaint in this Court against numerous
defendants, including Mr. Nickless. See Complaint. The Plaintiff alleged that Mr. Nickless both
lives and works in the State of Washington. Complaint at 1718. Although the Plaintiff
alleges that Mr. Nickless engaged in a campaign of defamation and false light against Plaintiff .
2

The case was captioned Brett Kimberlin v. Hunton & Williams LLP, et al. and the case number was GJH-15-723.

. .beg[inning] in fall of 2014, the Complaint contains only a single factual allegation against Mr.
Nickless; that on January 31, 2015, he tweeted, in BRETTs world every 12 yr old with an
GRANDMA needs to be TAKEN BY OLDER MEN TO DISNEY WORLD (& kill Gram). Id.
at 71, 97. The Plaintiff alleges that Mr. Nickless directed [his] activities into Maryland using
a computer device. Id. at 98. The Plaintiff also alleged that Mr. Nickless conspired with all
of the other defendants to invade his privacy. Complaint at 9095.
Mr. Nickless was not personally served with a copy of the summons and Complaint in
this matter. Affidavit at 6.3 In fact, Mr. Nickless learned of the lawsuit on June 2, 2015 when
an envelope with his name on was delivered to his office mail drop. Id. at 4. The envelope did
not require restricted delivery. Id. at 5. Although the envelope was addressed to Bill
Nickless it was mailed to PNNL at its business address of 902 Battelle Blvd., Richland, WA
99352. See Exhibit 2, Envelope. Mr. Nickless did not sign a delivery receipt and believed that
someone in PNNLs mailroom likely saw his name on the envelope and signed for it. Affidavit
at 6. Mr. Nickless ran the United States Postal Services (USPS) tracking number from the
envelope on the USPS web site and saw a status update which read Delivered, left with
Individual on May 25, 2016. See Exhibit 3, USPS Printout. Mr. Nickless did not authorize
anyone at PNNL to receive service of process on his behalf. Affidavit at 7.
ARGUMENT
I.

BECAUSE NEITHER MR. NICKLESS NOR HIS AUTHORIZED AGENT

WERE PROPERLY SERVED, SERVICE OF PROCESS WAS
INSUFFICIENT AND THE COMPLAINT SHOULD BE DISMISSED.

Although Mr. Nickless has attached an affidavit for the limited purpose of demonstrating that he was not properly
served with notice of this suit, this Court is not required to convert this motion to dismiss into a motion for summary
judgment. See Evans v. Cnty. Council of Prince Georges, 185 Md. App. 251, 256 ([w]hen a motion to dismiss is
based upon lack of jurisdiction, the court can consider affidavits . . . without converting the motion into a motion for
summary judgment) (citation omitted).

Mr. Nickless was not properly served under the Maryland rules and the Complaint should
be dismissed. Valid service of process is an essential element of due process, and until it has
been effected, the due processes of law cannot even begin. Brown v. Am. Insts. for Research,
487 F. Supp. 2d 613, 614 (D. Md. 2007). Service of process is essential because the Due Process
Clause of the 14th Amendment requires that notice and an opportunity for a hearing precede any
deprivation of life, liberty or property. Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313
(1950). Maryland courts have bluntly stated that [t]he importance of giving adequate notice
cannot be overstated. Miserandino v. Resort Props. 345 Md. 43, 52 (1997). In Maryland, the
method of service of process ordinarily required to provide notice of an action to a resident or
nonresident sufficient for the courts to obtain personal jurisdiction over them is either by
personal delivery or certified mail. See MD. RULE 2-121(a). When service of process is done by
certified mail, it must be restricted delivery and return receipt stating to whom it was delivered as
well as the date and address of delivery. Id.
The purpose of the certified mailing requirement is to ensure that the letter may be
delivered only to the addressee or his duly authorized representative. Miserandino, 345 Md. at
58. When service is by certified mail, the party completing service must file proof of that service
which includes the original return receipt.

See MD. RULE 2-126(a).

The reason for this

requirement is that the return of the postal receipt bearing the defendants signature, or that of his
authorized agent, allows the court to proceed with a high level of confidence that notice has been
given. Miserandino, 345 Md. at 5859.
The Maryland rules state that service is only effective if the person served is either the
individual or the individuals agent who is authorized either by appointment or law to receive
service of process. MD. RULE 2-124(b). Courts have strictly enforced this rule. In Gant v. Kant,

the court considered a motion to dismiss based on insufficiency of service of process filed by
defendant Ashima Kant. See 314 F. Supp. 2d 532, 533 (2004). The plaintiff attempted service
on two out-of-state defendants, Chander Kant and Ashima Kant, by certified mail, return receipt
requested, restricted delivery, sent to the defendants shared residence in New Jersey. Id. at 533.
Although the mailing was sent to both defendants, the return receipt was signed only by Chander
Kant. Id.
The court granted the motion to dismiss, noting that Chander Kant was not an agent
authorized by appointment or law to receive service of process on behalf of Ashima Kant. Id.
Service was effective only over Chander Kant because he had signed the return receipt, and the
attempted service on Ashima Kant d[id] not comply with the means of service provided by
statute or rule for obtaining jurisdiction over an individual defendant. Id. It did not matter to
the court that Ashima Kant had actual notice of the judicial proceedings. Id. at 534 ([I]t seems
fairly obvious that Ashima Kant is aware of these proceedings, but the fact remains that she
simply has not been served in a manner that complies with either Maryland or federal law). See
also Miles v. Hamilton, 269 Md. 708 (1973); Sheehy v Sheehy, 250 Md. 181 (1968) (holding that
the fact that a defendant has actual knowledge of a suit against him does not cure defective
service).
Here, as in Gant, Mr. Nickless has not been properly served. Under the Maryland rules
he could have been properly served if the Complaint, summons, and accompany papers had been
personally delivered to him, left at his residence with a resident of suitable age and discretion, or
sent to him by certified mail. The Plaintiff attempted service by certified mail which requires
restricted delivery and that Mr. Nickless or his authorized agent receive it. The mail was not sent
restricted delivery, Mr. Nickless did not receive service of process, nor did he sign the return

receipt. Furthermore, no one at PNN is either appointed by Mr. Nickless or authorized by law to
receive service of process on his behalf. In fact, Mr. Nickless did not see the documents until
June 2, 2016, which is eight days after the May 25, 2016 delivery date indicated on the USPS
website. See Exhibit 3. Because the attempted service of process does not comply with his due
process rights or Maryland law, it does not matter that Mr. Nickless has actual knowledge of the
suit against him. The Plaintiffs attempted service of process is insufficient, and the Complaint
against Mr. Nickless should be dismissed.
II.

MARYLAND COURTS LACK PERSONAL JURISDICTION OVER MR.

NICKLESS BECAUSE HE HAS INSUFFICENT CONTACTS FOR
GENERAL JURISDICTION AND A SINGLE UNDIRECTED TWEET IS
INSUFFICENT TO ESTABLISH SPECIFIC JURISDICTION.

The Plaintiffs Complaint does not allege that Mr. Nickless has any minimum contacts in
Maryland and it should be dismissed for lack of personal jurisdiction. In Maryland, it is the
plaintiffs burden to make a prima facie showing that a Maryland court has personal jurisdiction
over an out-of-state defendant. See Beyond Sys. v. Realtime Gaming Holding Co., 388 Md. 1,
11, 29 (2005). Whether or not a Maryland trial court can exercise personal jurisdiction over a
foreign defendant requires a two-part analysis. Id. at 14. First, the exercise of jurisdiction must
be authorized under Marylands long-arm statute, and second, it must comport with due process
requirements of the Fourteenth Amendment. Id. Marylands long-arm statute provides, in
pertinent part, as follows:
(b) In general. A court may exercise personal jurisdiction over a person, who
directly or by an agent:
(1) Transacts any business or performs any character of work or service in the
State;
(2) Contracts to supply goods food, services, or manufactured products in the
State;
(3) Causes tortious injury in the State by an act or omission in the State;
(4) Causes tortious injury in the State or outside the State by an act or omission
outside the State if he regularly does or solicits business, engages in any other
7

persistent course of conduct in the State or derives substantial revenue from

goods, food, services, or manufactured products used or consumed in the State
(5) Has an interest in, uses, or possesses real property in the State . . .
(c)(2) The provisions of this section apply to computer information and computer
programs in the same manner as they apply to goods and services.
MD. CODE ANN., CTS & JUD. PROC. 6-103(b). The statutory and constitutional inquiry are
intended to merge as the reach of the long-arm statute is coextensive with the limits of personal
jurisdiction delineated under the due process clause of the Federal Constitution. Id. at 22 (citing
Mohamed v. Michael, 279 Md. 653, 656 (1977)).
Regarding the due process inquiry, the Court of Appeals has stated that:
[t]o comply with the Due Process Clause of the Fourteenth Amendment, the
exercise of personal jurisdiction over an out-of-state defendant requires that the
defendant have established minimum contacts with the forum state and that to
hale him or her into court in the forum state would comport with traditional
notions of fair play and substantial justice.
CSR, Ltd. V. Taylor, 411 Md. 457 (2009) (citing Intl Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).

Depending on a defendants contacts with the State, cases are divided into two

categories: specific personal jurisdiction or general personal jurisdiction. CSR, Ltd., 411 Md. at
477). Specific personal jurisdiction cases arise where the cause of action arises from, or is
directly related to, the defendants contacts with the forum state. Id. In other words, the
defendants contacts with the forum state form the basis of the suit. Beyond Sys., Inc., 388 Md.
at 26. To determine if there is specific jurisdiction over a defendant, courts will consider (1) the
extent to which the defendant has purposefully availed itself of the privilege of conducting
activities in the State; (2) whether the plaintiffs claims arise out of those activities directed at the
State; and (3) whether the exercise of personal jurisdiction would be constitutionally
reasonable. Id. (citing Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc, 334 F.3d 390,
397 (4th Cir. 2003)). By contrast, general personal jurisdiction is based on a defendants

continuous and systematic contacts with the forum state which do not necessarily relate to the
lawsuit. Id. at 22.
Federal courts in Maryland have applied Maryland law to consider whether courts can
exercise personal jurisdiction over out-of-state defendants based on their website or internet
activity. In ALS Scan, Inc. v. Digital Serv. Consultants, Inc., the plaintiff, ALS Scan, Inc.
(ALS), a Maryland corporation, filed suit for copyright infringement against Digital Service
Consultants, Inc. (Digital) and its customer, Alternative Products, Inc. (Alternative). 293
F.3d 707, 709 (4th Cir. 2002). ALS claimed that Alternative appropriated hundreds of ALSs
copyrighted photographs and placed them on its web sites, which generated revenue for
Alternative through advertising and membership fees. Id. ALS alleged that Digital, as the
Internet Service Provider (ISP) for Alternative, enabled Alternative to publish the copyrighted
photographs. Id. Digital, a Georgia corporation with its only place of business in Atlanta, filed a
motion to dismiss for lack of personal jurisdiction, asserting that it had no contacts with the State
of Maryland except through the internet. Id. Specifically, Digital asserted that it had no offices,
conducted no business, had no contracts, did not advertise, and owned no property in Maryland.
Id. at 70910.
The District Court granted Digitals motion to dismiss, finding that it had no specific
jurisdiction over Digital because there was no evidence that ALSs claim for copyright
infringement arose out of any contact Digital had with Maryland. Id. The court found that it had
no general jurisdiction either because Digital did not have systematic and continuous contacts in
Maryland. Id. On appeal, ALS argued that the court did have specific jurisdiction because
Digitals role as an ISP enabled Alternative to publish photographs on the internet. Id. at 712.
The Fourth Circuit Court of Appeals stated that the question it had to answer was whether a

person electronically transmitting or enabling the transmission of information via the Internet to
Maryland, causing injury there, subjects the person to the jurisdiction of a court in Maryland.
Id.
The court recognized that if an individuals act of placing information on the internet
were to subject that person to personal jurisdiction in each state in which the information were
accessed, then State jurisdiction over persons would be universal, and notions of limited State
sovereignty and personal jurisdiction would be eviscerated. Id. at 71213. The court then
established its own test as follows:
[A] State may, consistent with due process, exercise judicial power over a person
outside of the State when that person (1) directs electronic activity into the State,
(2) with the manifested intent of engaging in business or other interactions within
the State, and (3) that activity creates, in a person within the State, a potential
cause of action cognizable in the States courts.
Id. at 714. In applying the standard to Digital, the court found that, although signals from
Digitals facility were received into Maryland, that activity was passive. Id. Because Digital did
not direct any electronic activity to targets in Maryland, nor did it attempt to engage in business
or any other interaction in Maryland, Digitals contacts in Maryland were insufficient to support
a Maryland courts exercise of specific jurisdiction. Id. at 715.
Although ALS did not argue that Maryland courts had general jurisdiction over Digital
based on systematic and continuous contacts, the court nonetheless considered the issue sua
sponte. As an initial matter, the court stated that the threshold level of minimum contacts
sufficient to confer general jurisdiction is significantly higher than for specific jurisdiction. Id. at
715 (quoting ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997)). The court
then stated definitively that [w]e are not prepared at this time to recognize that a State may
obtain general jurisdiction over out-of-state persons who regularly and systematically transmit

10

electronic signals into the State via the Internet based solely on those transmissions. Something
more would have to be demonstrated. Id.
In Dring v. Sullivan, the plaintiff, a Maryland resident, filed suit in federal court in
Maryland for defamation against the defendant, a New Jersey resident. See 423 F. Supp. 2d 540,
542 (D. Md. 2005). The complaint alleged that the defendant used an internet listserv to send an
email to sixty-nine individuals, accusing the plaintiff of being corrupt and unethical. Id. at 542
43. The plaintiff claimed that at least three of the email recipients were located in Maryland. Id.
at 544. The defendant moved to dismiss the complaint on the grounds that the court lacked
personal jurisdiction over him.

Id at 543. In response, the plaintiff claimed that specific

jurisdiction over the defendant was proper because the brunt of the injury suffered by the
plaintiff was in Maryland and because the defendant intentionally directed his email into
Maryland. Id. at 54344. The plaintiff also emphasized that the defendant traveled to Maryland
annually to participate as a referee in a tae kwon do event. Id. at 546.
In considering the defendants motion to dismiss, the court first examined the facts under
Marylands long-arm statute. Id. at 546. Because the plaintiff did not specify which section of
Marylands long-arm statute applied, the court conducted its own analysis. Id. at 54546. The
court found that subsection (b)(3), which requires that the tortious act occur in Maryland, did not
apply because the defendants conduct had taken place from a computer in New Jersey. Id. at
546. The court then determined that the only applicable subsection was (b)(4) which provides
for jurisdiction when the defendant causes a tortious injury in or outside Maryland by an act
outside of Maryland if he regularly does or solicits business, engages in any other persistent
course of conduct in the State . . . Id. (quoting MD. CODE ANN., CTS & JUD. PROC. 6103(b)(4)).

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Therefore, the issue to be determined was whether the defendant had engaged in a
persistent course of conduct in Maryland. Id. The court held that the email, standing alone,
was insufficient to support such a finding. Id. Even if the defendants other contacts were
considered, including his annual trips to Maryland, it still would not amount to a persistent
course of conduct. Id. (citing Camelback Ski Corp. v. Behning, 307 Md. 270 (1986) (holding
that the defendants contacts did not amount to a persistent course of conduct where the
defendant sent a representative to Maryland, the defendants ski resort was listed in a publication
distributed in Baltimore, the defendant sent brochures to Maryland residents and businesses who
requested them, and the defendant maintained a toll-free number accessible to Maryland
residents) (subsequent history omitted)).

A finding of personal jurisdiction would require

evidence that the defendant was intentionally targeting Marylanders with his use of the internet.
Id. at 547 (quoting Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc, 334 F.3d 390, 400
(4th Cir. 2003)). In the absence of such targeting, the court held it had no personal jurisdiction
over the defendant. Id.
Similarly, in Metro. Regl Info. Sys. v. Am. Home Realty Network, Inc. the plaintiff, a
Delaware corporation with its principal place of business in Maryland, filed suit in District Court
for the District of Maryland against the American Home Realty Network, Inc. (AHRN), a
Delaware corporation with its principle place of business in California, and Jonathan Cardella
(Cardella), the Chief Executive Officer (CEO) of AHRN and a California resident. 888 F.
Supp. 2d 691, 696 (D. Md. 2012). Cardella filed a motion to dismiss for lack of personal
jurisdiction. Id. at 697. The majority of the allegations against Cardella in the plaintiffs
complaint pertained to his role with AHRN. Id. at 699700. Upon considering the motion, the

12

court stated that personal jurisdiction over Cardella must be based on his own contacts with the
State of Maryland rather than his status with AHRN. Id. at 700.
The only factual evidence of Cardella having any personal contacts with Maryland was a
single tweet which read Realtor Performance Profile for Catherine Cusack in Edgewater,
MD along with a link to the real estate agents online profile. Id. The court held that under
subsection (b)(1) and (b)(4) of Marylands long-arm statute, the plaintiff failed to demonstrate
that Cardella had engaged in regular business or a persistent course of conduct in Maryland.
Id. Under a due process analysis, the court also held that the isolated tweet failed to show that
Cardella intended to engage in business in Maryland. Id. Therefore, the court found that it
would be unreasonable to hale Cardella, into a Maryland court based on a single tweet which
referenced the state and the court granted Cardellas motion to dismiss. Id.
Here, the Plaintiff has the burden, by a preponderance of the evidence, to make a prima
facie case that this Court has personal jurisdiction over Mr. Nickless. The analysis must begin
with examining Marylands long-arm statute to see if it establishes grounds for Maryland courts
to exercise personal jurisdiction over Mr. Nickless. In his Complaint, the Plaintiff simply states
that this Court has personal jurisdiction under the long-arm statute without stating which
provision he believes applies. Complaint at 1. As in the Dring case, therefore, it is necessary
to look at the statute to determine which, if any, provisions may apply. See MD. CODE ANN., CTS
& JUD. PROC. 6-103(b).
Subsection (b)(1) does not apply because the Plaintiff has not alleged that Mr. Nickless
transacts any business or performs any work in Maryland. Subsection (b)(2) does not apply
because Plaintiff has not alleged that Mr. Nickless contracts to supply goods, food, services, or
other products in Maryland. Subsection (b)(3) does not apply because the Plaintiff does not

13

allege that Mr. Nicklesss tortious acts occurred in Maryland. In fact, he states that Mr. Nickless
both lives and works in the State of Washington, and alleges that Mr. Nickless directed [his]
activities into Maryland via a computer. Complaint at 1718, 98. Subsection (b)(5) does not
apply as Plaintiff does not allege that Mr. Nickless owns or uses real property in Maryland.
The only subsection that could potentially apply is (b)(4) which requires that Mr.
Nickless cause tortious injury to the Plaintiff either inside or outside of Maryland and that he
regularly does or solicits business, engages in any other persistent course of conduct in the State
or derives substantial revenue from goods, food, services, or manufactured products used or
consumed in the State. MD. CODE ANN., CTS & JUD. PROC. 6-103(b)(4). The Plaintiff does not
allege that Mr. Nickless has any systematic and continuous contacts with Maryland that could
form a basis for general jurisdiction. The Plaintiff makes a single factual allegation in the
Complaint; that Mr. Nickless posted a defamatory tweet about him on January 31, 2015, and that
he directed it into Maryland by using a computer. Complaint at 71, 98. Therefore, the
Plaintiff is asserting that this Court has specific jurisdiction over Mr. Nickless.
In applying the courts test for specific jurisdiction from ALS, Inc., the Plaintiff offers
nothing more than a conclusory statement to show that Mr. Nickless did anything to direct the
alleged tweet or any other internet or electronic communications into Maryland or that he
targeted a Maryland audience. Nor does the Plaintiff provide any factual allegation that Mr.
Nickless attempted to engage in business or any other interaction in Maryland. As the ALS, Inc.
court recognized, Mr. Nickless cannot be subjected to jurisdiction in Maryland simply by putting
accessible information on the internet. The Plaintiff may argue that because Mr. Nickless knew
that Plaintiff was a Maryland resident and knew that the alleged tweet could cause the Plaintiff
injury in Maryland, there is sufficient basis for specific jurisdiction in Maryland. This exact

14

same argument has been explicitly rejected by the United States Supreme Court because it is Mr.
Nicklesss contacts with Maryland that determine whether it is fair for him to be subjected to
personal jurisdiction, not the Plaintiffs.4
As in Dring, where the court held that a single email was insufficient to support a finding
of a defendants persistent course of conduct in Maryland, a single alleged tweet is insufficient
to establish personal jurisdiction under Marylands long-arm statute.5 The facts of this case are
analogous to the Metro case. As in the Metro case, the Complaint is filled with conclusory
allegations lacking any factual basis, such as, [i]n the fall of 2014 . . . Bill Nickless, began a
covert and then overt campaign to defame, harass and bully Plaintiff with disinformation and
defamatory blog posts/tweets meant to harm him. Complaint at 70. As in the Metro case, the
only factual support to provide any basis for Mr. Nicklesss personal contacts with Maryland is
the single alleged tweet.6 Id. at 71. As the Metro court concluded, a single tweet does not
establish a persistent course of conduct, necessary to satisfy the long-arm statute. Under a due
process analysis, it would be constitutionally unreasonable to hale Mr. Nickless into a Maryland
court. Therefore, this Court lacks personal jurisdiction over Mr. Nickless and the Complaint
should be dismissed.
III.

PLAINTIFFS CLAIM THAT MR. NICKLESS ENGAGED IN A

CONSPIRACY IS INSUFFICIENT TO SALVAGE PERSONAL
JURISDICTION BECAUSE IT IS DEVOID OF FACTUAL SUPPORT.

Maryland recognizes a conspiracy theory of personal jurisdiction. See Mackey v.

4

See Walden v. Fiore, 134 S. Ct. 1115, (2014) (holding that, absent other contacts with the forum state, a
defendants knowledge that a plaintiff is from a forum state, coupled with the foreseeability of harm to the plaintiff
in the forum state is insufficient to establish personal jurisdiction in the forum state because such an analysis
wrongly focuses on the plaintiffs connection to the forum state, rather than the defendants.
5
The factual allegations in Dring actually presented a stronger argument that Maryland courts had personal
jurisdiction than the facts alleged by the Plaintiff because there was evidence in Dring that the defendant sent the
email in question to three Maryland recipients and that he made annual trips to Maryland.
6
Any argument that Mr. Nicklesss alleged tweet is a contact with Maryland is even more attenuated than in the
Metro case where the alleged tweet made a reference to Maryland. Here, there is nothing in the content of the
alleged tweet to suggest any Maryland connection.

15

Compass Mktg., 391 Md. 117 (2006). Under this theory, an out-of-state party which individually
lacks minimum contacts with the forum state may nevertheless be subject to suit in the forum
state based upon a co-conspirators contacts with that state. Id. at 484. It is constitutionally
required, however, that the plaintiff first makes a prima facie claim that a conspiracy existed
before a defendant can be hailed into a foreign court based on a conspiracy-based theory of
personal jurisdiction. Ohio Learning Ctrs. V. Sylvan Learning, Inc., No. RDB-10-1932, 2012
U.S. Dist LEXIS 57151, at *14. When a conspiracy-based theory of personal jurisdiction is
espoused by a plaintiff, the court will examine the complaint to see if the facts alleged, if taken
as true, will support a conspiracy claim. Id. at 15.7 In Ohio Learning Ctrs. the court rejected a
conspiracy-based theory of personal jurisdiction after examining the plaintiffs amended
complaint and stated as follows:
Plaintiffs cannot make the requisite prima facie showing because the Amended
Complaint is devoid of facts, that even if taken as true, would support a civil
conspiracy claim. Without factual support, the Plaintiffs merely state that
Sylvan and ES knowingly and intentionally conspired and colluded to commit a
wrongful act against OLC. This conclusory allegation, without supporting facts
demonstrating an agreement or understanding between . . . the Defendants, is
not enough to support this Courts exercise of personal jurisdiction . . .
Id. at 1516. The court then granted the motion to dismiss filed by the out-of-state
defendant. Id. at 16.
Here, the Plaintiff makes a blanket allegation that all of the named defendants from
October 2010 through March 2015, conspired to and did invade Plaintiffs privacy through
unreasonable intrusion upon the seclusion of Plaintiff . . . Complaint at 91. Presumably, Mr.
Nickless is included in this allegation. However, the Plaintiff provides no factual support
anywhere in the Complaint to show that Mr. Nickless entered into an agreement or worked

This requirement prevents plaintiffs from hailing out-of-state defendants into Maryland courts, which otherwise
lack personal jurisdiction, by simply adding a claim for conspiracy.

16

together with any other defendants to invade the Plaintiffs privacy. It is nothing more than a
conclusory allegation which is unsupported by any factual showing of participation in a joint
plan of action. Because the Complaint is devoid of facts, that even if taken as true, would
support the conspiracy claim, it should be dismissed.
CONCLUSION
For the reasons established above, service of process upon Defendant William Nickless
was insufficient and this Court lacks personal jurisdiction over Defendant William Nickless.
WHEREFORE, Defendant William Nickless respectfully requests that this Court
dismiss all counts of the Plaintiffs Complaint which are alleged against him.

Respectfully submitted,

CRAIG D. ROSWELL
JOEL M. CELSO
NILES, BARTON & WILMER, LLP
111 S. Calvert Street, Suite 1400
Baltimore, Maryland 21202
(410) 783-6300
jmcelso@nilesbarton.com
Counsel for Defendant, William Nickless

4824-2261-4067, v. 2

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