PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH PREJUDICE PURSUANT TO FRCP 41(a)(2)

5/1/24

Below is Breaking Code Silence’s response to DEFENDANTS’ RESPONSE TO PLAINTIFF’S REQUEST FOR DISMISSAL WITH PREJUDICE.

Some notable parts:

  • Whiteley and McNamara noted in their response that the court had ordered BCS to provide “profit-and-loss statements, balance sheets, and bank statements” and that BCS had defied the Court’s order and did something other than what it was directed to do. BCS did not appear to correct those deficiencies in this response.
  • BCS does not address the evidence provided in McNamara and Whiteley’s response that addressed that the US Bank account was never withheld from BCS by McNamara after her resignation or the proof that the BCS’ US Bank account was not opened as a “personal account.”
  • BCS claims that US Bank sent the final check and statements in February 2022 to a mailbox in McNamara’s possession and control. According to BCS, they could not reorder statements or reissue the check for a year and a half. After a quick call US Bank customer support, we were instructed that a visit to a local US Bank branch would have resolved this issue quickly. According to the US Bank website, Vanessa Hughes lives only a few miles from her local US Bank branch.
  • BCS mentions the Hilton Grant as the explanation for its balance in its 990s. However, we cannot tell for sure as BCS did not provide detailed statements, balance sheets, and profit-and-loss statements as ordered by the court.
  • Strangely, BCS once again blames Whiteley, McNamara, and non-parties for not having visibility into other accounts. Whiteley’s Motion for Summary Judgment declaration states that he was removed from BCS’ Facebook Business Account in 2021. He also provided a copy of the public Nonprofit Financial Entity Application Support form as an exhibit showing BCS could have submitted a form to receive help in accessing the financial side of the business account. BCS also strangely claims they cannot access the financial side of their Facebook Business account due to a “lack of cooperation” by Whiteley. However, emails produced for his Motion for Summary Judgment show that Whiteley attempted to communicate that he was still receiving Facebook notifications for BCS and asked them to remove him. Whiteley’s counsel, Catherine Cook, filed a declaration that she “received no response to my emails regarding the Facebook account from any of BCS’ attorneys.” This is just one of many examples in which BCS attempts to shift the blame to Whiteley or McNamara despite clear evidence of the opposite.
  • BCS attempts to explain away the Jensen/Hughes email about a Bank of America account as a “fake email created to test whether Defendants had access BCS’ email environment.” This seems like a strange explanation given that this test was a year into this litigation and sent mere weeks before BCS was to turn over their emails to Whiteley and McNamara as part of discovery.

PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
DLA PIPER LLP (US)
WW W.D LA PI PE R.CO M
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JOHN SAMUEL GIBSON (SBN 140647)
john.gibson@us.dlapiper.com
JASON TAYLOR LUEDDEKE (SBN 279242)
jason.lueddeke@us.dlapiper.com
DLA PIPER LLP (US)
2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, California 90067-4735
Tel: 310.595.3000
Fax: 310.595.3300
Attorneys for Plaintiff
BREAKING CODE SILENCE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) non-profit,
Plaintiff,
v.
MCNAMARA, an
individual, JEREMY WHITELEY, an
individual, and DOES 1 through 50,
inclusive,
Defendants.
CASE NO. 2:22-CV-002052-SB-MAA
Hon. Maria A. Audero
PLAINTIFF’S REPLY IN
SUPPORT OF REQUEST FOR
VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP
41(a)(2)
Complaint Filed: March 28, 2022
Trial Date: Not Set
Case 2:22-cv-02052-MAA Document 206 Filed 05/01/24 Page 1 of 8 Page ID #:8831
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PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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Plaintiff Breaking Code Silence (“BCS”) agrees with Defendants
McNamara and Jeremy Whiteley (“Defendants”) that the Court should grant BCS’
request to dismiss the complaint with prejudice, and that the Court need not make
any factual determinations in doing so. Indeed, Defendants state they “are not aware
of any controlling case where a court has denied a request for dismissal with
prejudice.” Dkt. 202 at 5. All parties agree that this is where the matter should end.
However, should the Court be inclined to make factual determinations upon
dismissing the complaint, BCS feels it necessary to clarify the many
misrepresentations, false statements, and inaccuracies in Defendants’ highly
misleading response.
A. Procedural History
BCS will not belabor here the procedural history of this matter, as it is well
documented in the many briefs, filings and orders already on record. However, BCS
requests that the Court not simply take Defendants’ statements regarding the
procedural history at face value, but instead rely on the record, which demonstrates
that, though the parties have disagreed strongly on a number of issues, BCS – the
only plaintiff in this case – has acted in good faith within the constraints of its
financial resources and legal authority.
B. BCS’ Financial Condition
With regard to Defendants allegations that BCS’ declaration of financial
condition is “demonstrably false”, BCS feels it necessary to correct the record for
the Court and counsel’s benefit.
1. Form 990s and Annual Registration Renewal Fee Reports
Defendants first cite to recent filings by BCS with the California Attorney
General as evidence that Ms. Magill’s declaration of BSC’s financial condition was
inaccurate. Dkt. 202 at 9-10. Using Defendants’ own words, this is demonstrably
false. Ms. Magill’s declaration was intended to illustrate BCS’s current financial
Case 2:22-cv-02052-MAA Document 206 Filed 05/01/24 Page 2 of 8 Page ID #:8832
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PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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condition. The cited Annual Registration Renewal Fee Reports disclose historical
information that does not reflect BCS’ current financial condition.
The recent filings with the California Attorney General were made in
connection with BCS updating its registration as a charitable organization. The
documents filed in connection with the registration include BCS’ most recent
financial statements. Because BCS has a year-end of June 30, the most recent
financial statement included in its filing was from June 30, 2023. That statement
does not reflect BCS’ current financial condition.
Moreover, Defendants state, “According to BCS’s Form 990 for the fiscal
year ending June 30, 2023, BCS had $452,182.00 in cash as of June 30, 2023 (the
end of fiscal year 2022).” Dkt. 202 at 10. As Defendants well know, most of that
sum, $450,076.32 to be exact, was earmarked for a multi-year research project,
originally at the University of North Carolina Wilmington (“UNCW”) and later
transferred to Barry University under the direction of Dr. Athena Kolbe.1[Magill
Decl. ¶ 2.] Thus, while BCS had $452,182.00 at the end of its last fiscal year,
$450,076.32 was money received as part of a grant, and has since been transferred
to a third-party for research purposes. BCS has none of it. So that the Court has
complete transparency on this issue, BCS has provided copies of the following
documents which show the provenance of the $452,182.00 at issue:
 Copy of the check from UNCW to BCS for $450,076.32. [Magill Decl.
¶ 3, Ex. 1.]  Alpine Bank statement from November 2022, showing BCS’ deposit of
1
Defendants are also well aware that BCS received a $500,000 research grant from
the Conrad Hilton foundation. Indeed, this fact is thoroughly discussed in
Defendants’ website, www.breakingcodesilencelawsuit.com, which Defendants
have used to weaponize the current lawsuit. [Kiker Decl. ¶ 2-4, Ex. 1 (home page of
Defendants’ website), Ex. 2 (website page on “The Breaking Code Silence Research
Grant”). Even the return of the funds from UNCW and the planned transfer to Barry
University are documented in Defendants’ website. [Id.] Case 2:22-cv-02052-MAA Document 206 Filed 05/01/24 Page 3 of 8 Page ID #:8833
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PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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$450,076.32, representing UNCW’s return of grant funds associated
with research performed by Dr. Athena Kolbe, who left the university
after harassment from Defendants and their associates led UNCW to
deny her tenure and tell Dr. Kolbe that she should not be publicly
volunteering with BCS. [Magill Decl. ¶¶ 2,4, Ex. 2.]  Alpine Bank statement from July 2023, showing BCS’ wire transfer in
the amount of $450,076.32, representing the transfer of funds received
from UNCW to Barry University to be used for the same research
project by Dr. Athena Kolbe, who had joined the university, leaving
BCS with a balance of $2,398.91. [Magill Decl. ¶ 5, Ex. 3.] Of course, BCS could have provided the Court with this complicated history
associated with restricted funds that were never available to the organization for any
purpose other than a research grant, but it would not have changed BCS’ current
financial condition, which is reflected accurately in Ms. Magill’s declaration.
Defendants’ attempts to obfuscate the record and cast aspersions against BCS in
spite of their own knowledge of the history of these funds is disappointing.
2. Bank Statements
a. Charitable Donation Accounts
Defendants then allege, without any evidence, that BCS might have money
“hidden” in other locations, including “GiveButter, Stripe and PayPal accounts”.
Dkt. 202 at 11-12. Contrary to Defendants’ implication, these are not “deposit
accounts” and are not locations that BCS would retain funds. Indeed, as can be seen
from its Alpine Bank statements, BCS routinely transfers funds from charitable
donation accounts to its interest-bearing bank accounts. [Magill Decl. ¶¶ 6-10, Ex. 4
(GiveButter Stripe Express activity report), Ex. 5 (Alpine Bank statement dated
February 28, 2023, showing deposit from Amazon Smiles), Ex. 6 (Alpine Bank
statement dated March 31, 2023, showing deposits from GiveButter and PayPal),
Case 2:22-cv-02052-MAA Document 206 Filed 05/01/24 Page 4 of 8 Page ID #:8834
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PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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Ex. 7 (Alpine Bank statement dated April 28, 2023, showing deposit from
CyberGrants).]2

BCS has no deposit accounts other than its Alpine Bank account, which is
what Ms. Magill relied upon and provided to the Court to show BCS’ current
financial condition. [Magill Decl. ¶ 6.] With regard to the other accounts to which Defendants allude, Facebook and
Stripe, BCS has not had access to the either due to the actions of Mr. Whiteley
(Facebook) and Ms. Appelgate, a colleague and friend of Ms. McNamara (Stripe).[Magill Decl. ¶ 6, Ex. 8 (email showing that two-factor authentication goes to a
phone number associated with Ms. Appelgate, who is no longer associated with
BCS, is required for the former BCS Stripe account), Ex. 9 (screen shot showing
that the two-factor access to the former BCS Stripe account is still in place today,
preventing BCS from accessing the account), Ex. 10 (email showing that BCS does
not have access to Facebook donations due to lack of cooperation by Mr. Whiteley,
who at present is the only person who can rectify the account access, despite the
Defendants’ claims).] b. US Bank Account
BCS acknowledges that it produced US Bank statements in the state case for
the months of November 2021 through January 2022. The latter is the last bank
statement in BCS’ possession.
As Defendants are well aware but fail to inform the Court, that account was
eventually closed, and the funds returned to BCS. As shown on the last statement,
the closing balance on January 31, 2022, was $622.19. [Dkt. 152-121 at p. 676].
BCS deposited a US Bank cashier’s check for $622.19 into its Alpine Bank account
2
For instance, donors would make contributions to BCS via GiveButter, and the
funds would then be transferred from GiveButter, using its own private Stripe
Express account, to BCS’ Alpine Bank account. [Magill Decl. ¶¶ 7-9, Ex. 4 (Stripe
Express activity report from GiveButter showing transfers), Ex. 9 (Alpine Bank
statement showing deposit attributed to GiveButter).
Case 2:22-cv-02052-MAA Document 206 Filed 05/01/24 Page 5 of 8 Page ID #:8835
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PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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on August 16, 2023, representing the account closure. [Magill Decl. ¶ 10, Ex. 11
(copy of cashier’s check from US Bank dated August 15, 2023, in the amount of
$622.19), Ex. 12 (Alpine Bank statement dated August 28, 2023, showing deposit of
$622.19).] Clearly, BCS had not accessed or used the US Bank account since the account
was closed in February 2022. The final check with the closing account balance was
not deposited into BCS’ new account at Alpine Bank until a year and a half later
because the check was originally sent to a UPS mailbox that Ms. McNamara refused
to relinquish to the organization after she resigned. The check was not returned to
sender or ever cashed, and BCS had no way of accessing the mailbox, so the process
of obtaining those funds was both lengthy and complicated.
c. Bank of America Account
BCS does not have and has never had a Bank of America bank account.[Magill Decl. ¶ 6.]3
Defendants acknowledge that Dr. Hughes testified in her
deposition that the document was a “fake email” created to test whether Defendants
had access BCS’s email environment. Dkt. 202 at 12 n.3. Defendants have no
evidence to the contrary; instead, they say, as is their common refrain, that they
simply do not believe Dr. Hughes. It is surprising and somewhat shocking that
Defendants would offer this document as “evidence” of anything.
C. Conclusion
Defendants’ response adds nothing of substance to this case but stands as a
clear illustration of why BCS would like to voluntarily dismiss its complaint. It
simply lacks the resources to continually respond to baseless and ill-informed
3
On April 25, 2024, BCS promptly requested written confirmation of the same.
Bank of America informed BCS that it would send a confirmatory letter, but it has
not yet arrived as of the date of this filing.
Case 2:22-cv-02052-MAA Document 206 Filed 05/01/24 Page 6 of 8 Page ID #:8836
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PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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allegations that are the hallmarks of Defendants’ litigation strategy.4
Therefore, BCS
reiterates its request that the Court grant its request to voluntarily dismiss the case
with prejudice.
Dated: May 1, 2024 Respectfully submitted,
DLA PIPER LLP (US)
By: /s/ Jason Lueddeke
John Samuel Gibson
Jason Taylor Lueddeke
Attorneys for Plaintiff
BREAKING CODE SILIENCE
4
Defendants also contend that if the Court makes “any factual determination
regarding BCS’s motivation [for dismissing its Complaint], the Court should hold
that BCS only dismissed the case to avoid an adverse ruling on the motions for
summary judgment.” Dkt. 202 at 6. BCS’ motivation is irrelevant. See Smith v.
Lenches, 263 F.3d 972, 976 (9th Cir. 2001) (a defendant does not suffer legal
prejudice “merely because…a plaintiff would gain a tactical advantage by [a] dismissal”; granting request for dismissal).
Case 2:22-cv-02052-MAA Document 206 Filed 05/01/24 Page 7 of 8 Page ID #:8837
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PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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L.R. 11-6.2 CERTIFICATION
The undersigned, counsel of record for Plaintiff certifies that this brief
contains 1,829 words, which complies with the word limit of L.R. 11-6.1.
Date: May 1, 2024 /s/ Jason Lueddeke
JASON LUEDDEKE
Case 2:22-cv-02052-MAA Document 206 Filed 05/01/24 Page 8 of 8 Page ID #:8838