MARYLAND: IN THE CIRCUIT COURT OF MONTGOMERY COUNTY Brett Kimberlin, Plaintiff Case No, 403868V National Bloggers Club, et al., Defendants DEFENDANT WALKER’S REPLY TO PLAINTIFF'S OPPOSITION TO. MR. WALKER’S MOTION TO DISMISS Now Comes Defendant Aaron J. Walker, Esq.,' and files this Reply to the Plaintiff's Opposition to Mr. Walker’s Motion to Dismiss (hereinafter the “Opposition”) (Dkt. no. 63) and states the following 1 ADDITIONAL FACTUAL ASSERTIONS CANNOT BE CONSIDERED BY THIS COURT In his Opposition, the Plaintiff alleges a number of new and fanciful facts, and includes an affidavit. It is improper for this Court to consider them. As stated in RRC Northeast, LLC v. BAA Maryland, Inc., 413 Md. 638, 994 A.2d 430, 434 (2010), “{cJonsideration of the universe of “facts” pertinent to the court's analysis of the motion [to dismiss] are limited generally to the four comers of the complaint and its incorporated supporting exhibits, if any.” For this reason alone the Plaintiff cannot introduce new “facts” not listed in his Complaint, and, therefore, this Court should disregard any such “facts,” including those new ' Mr. Walker refers to himself in the third person for stylistic purposes and to de-personalize this case.“facts” in his affidavit. Furthermore, in the particular case of his affidavit, that evidence cannot be considered because the Plaintiff is not competent to testify in Maryland. Specifically, under Mp Cobe Cts. & Jud. Proc. §9-104 “[a] person convicted of perjury may not testify.” This Plaintiff has been convicted of perjury,” and, therefore, he is not competent to testify under §9- 104, I. ‘THIS SUIT IS BARRED BY RES JUDICATA AND MUCH OF IT IS BARRED BY COLLATERAL ESTOPPEL In Mr. Walker's Motion to Dismiss (Dkt. No. 7), he argued that because of the outcome in Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013) that the present suit is barred. The Plaintiff's attempt to rebut this assertion fails. In relation to res judicata, the Plaintiff claims that somehow the state law claims previously brought in the U.S. District Court for the District of Maryland could not have been brought in this Court, writing. The instant case was initially brought in federal court because there were concurrent federal questions involving several of the Defendants, including Defendant Frey who was charged with violating Plaintiff's civil rights under 42 USC 1983 [sic], which is something that cannot be brought in state court. Opposition at 23 (emphasis in original). However, contrary to the Plaintiff's claims, Maryland state courts routinely hear 42 U.S.C. §1983 claims as well as §1985 claims and claims under the Federal RICO statute (18 U.S.C. §1961 et seq.). For instance in De Bleecker v. Montgomery ? See, e.g., Kimberlin v. Dewalt, 12 F.Supp.2d 487, 490 n. 6 (D. Md 1998) (“Petitioner possessed ‘two 50-pound boxes of Tovex 200 dynamite while on probation from a 1973 felony conviction for perjury. Part of the dynamite was used to blast holes in the earth to construct an underground storage vault, while some of the dynamite was used in petitioner’s next offense”) and Kimberlin v. White, 798 F. Supp. 472, 482 (W.D. Tenn, 1992) (“{t]he convictions in question are a juvenile conviction for selling controlled substances and a subsequent conviction shortly after his 18th birthday for perjury before the grand jury relative to the involvement of others in the juvenile drug offense”),County, Md., 292 Md. 498 (1982) the Court of Appeals dealt with claims involving §§1983 and 1985, while in Taflin v. Levitt, 92 Md.App. 375 (1991) the Maryland Court of Special Appeals heard Federal RICO claims. Therefore, there is absolutely no reason why the Plaintiff couldn’t have included every single Defendant and every single claim asserted in the instant lawsuit, in his Second Amended Complaint in Kimberlin v. Walker, et al. Thus, his claim that res judicata doesn’t apply fails, and this Court should grant Mr. Walker's motion to dismiss for this reason alone, Finally, on the subject of collateral estoppel, the Plaintiff writes that Kimberlin v. Walker, et al, “had an overlap of three Defendants in an entirely different set of circumstances, tortious conduct, and time frame.” Opposition at 23. This claim is factually false as this Court can see from the exhibits Mr. Walker attached to his Motion to Dismiss, and this claim is at odds with what the Plaintiff has told other courts creating estoppel by admission, as will be demonstrated in oral argument, scheduled for Thursday, September 3, 2015, Therefore, there is no reason why Kimberlin v. Walker, et al. should not have a preclusive effect on the current proceedings. m1. THE PLAINTIFF FAILS TO DISPUTE MANY POINTS ON THE MERITS As is usual when replying to the Plaintiff, it is useful to take a moment to outline the arguments he has not disputed. First, the Plaintiff has not disputed Mr. Walker's argument that the Plaintiff had failed to properly allege a cause of action for publication of private facts. In particular, the Plaintiff failed to allege that they are facts. That is, he doesn’t allege that the Defendants have told the truth about him. Further, even if the Complaint is the Plaintiff's confession that he was involved in the SWATtings at issue in this case, that he cost Mr. Walker his job, and that he tried to frame Mr. Walker for a crime, such facts would not be private. Moreover, the Plaintiff fails to properly 3allege any damage, or that such alleged damage was proximately caused by Mr. Walker’s conduct. Second, the Plaintiff has not disputed Mr. Walker’s argument that the Plaintiff failed to allege intrusion into seclusion. As Mr. Walker noted, the Plaintiff has failed to properly allege any tortious method of intrusion, any damage, or that any such intrusion proximately caused such damage. Third, the Plaintiff has not disputed Mr. Walker's argument that the Plaintiff failed to allege misappropriation of name or likeness. Specifically, the Plaintiff failed to allege that 1) Mr. Walker took advantage of Plaintiff's “good” name, 2) that the Plaintiff's name has commercial or other value, 3) that such use was not merely incidental to news and commentary, 4) that the Plaintiff suffered any damage, and 5) that such damage was proximately caused by such use of the Plaintiff's name or likeness. Fourth, in relation to the false light, he does not dispute that he must meet the same pleading standards as for defamation, Piscatelli v. Van Smith, 424 Md. 294, 35 A.3d 1140, 1146- 47 (2012), or that those standards require that he provide a specific description of the content of the alleged false statements and when and how they were communicated, Brown v. Ferguson Enters., Inc., No. 12-CV-1817-CCB at *5 (D. Md. Dee. 11, 2012). ‘The Plaintiff doesn’t deny that he serially fails to meet those standards. Further, the Plaintiff doesn’t dispute that he has failed to properly allege malice. Also, as usual, he makes no proper allegation of damage, or that such damage was proximately caused by any Defendant allegedly placing the Plaintiff in a false light. Fifth, the Plaintiff fails to dispute any of Mr. Walker’s arguments related to how the Plaintiff has failed to properly allege interference with an existing contract. Indeed, he doesn’teven properly allege the existence of, any Defendant's knowledge of, or any breach of, any contract. In fact, much of his Complaint suggests that no such breach occurred, while there is no proper allegation of damage or that any Defendant proximately caused such damage. Sixth, in relation to battery, the Plaintiff doesn’t dispute that the appropriate statute of limitations has passed, or that he was collaterally estopped from re-litigating the matter after his first peace order against Mr. Walker.’ Seventh, in relation to interference with prospective business relations, he doesn’t dispute that one must allege interference by wrongful means, that he has failed to allege such wrongful ‘means, or that he failed to allege any interference with the level of specificity required by law. Eighth, in relation to conspiracy, while the Plaintiff pretends he has properly alleged conspiracy, he does not dispute any of the flaws Mr. Walker pointed out in his claim, namely that: 1) it is not a separate cause of action and 2) there are no non-conclusory allegations of conspiracy. He literally just says “conspired” and a few related terms a few times and believes that it is sufficient. Tt is not. ‘These eight points fairly lay waste to the majority of his Complaint—assuming for a ‘moment that res judicata and collateral estoppel didn’t already do the same work. Meanwhile, to the extent that he attempts to dispute Mr. Walker's arguments, the Plaintiff fails to offer any reason why this case shouldn’t be dismissed, THE PLAINTIFF FAILS TO PROPERLY PLEAD FALSE LIGHT. In his Opposition, the Plaintiff attempts to dispute the claim that the defamation-proof doctrine and the failure to properly allege malice bars his claim for false light. * The Plaintiff does (falsely) dispute the application of collateral estoppel arising from Kimberlin v. Walker, et al., but not from the peace order.In relation to the defamation-proof doctrine, although the Plaintiff has not sued Mr. Walker or any of the Defendants who have appeared in this case so far for defamation, false light is subjected to the same minimum pleading standards as a defamation claim. Piscarelli v. Van Smith, 424 Md. 294, 35 A.3d 1140, 1146-47 (2012). ‘That should include the defamation-proof doctrine, The sole attempt by the Plaintiff to rebuff Mr, Walker’s argument that he is defamation proof is when he murders a straw man, writing: “[alecording to Defendants, the felon class, consisting of tens of millions of Americans who have served their sentences, has no right under the law to sue for tortious conduct, including false light.” Opposition 433, p. 18. However, none of the Defendants, including Mr. Walker, have claimed that no felon can sue for defamation or false light. Instead, they have merely stated that this particular Plaintiff has so sullied his reputation by past misconduct that no further measurable damage can be done, Mr. Walker has pointed out that when applying the defamation-proof doctrine, this Court can consider the Plaintiff's prior convictions, prior coverage of his conduct, and even prior court decisions such as Kimberlin v. Walker, et. al. So to hear the Plaintiff tell it, he thinks there are people who would say: “Sure, he is a convicted terrorist who caused a man’s death, cheated the widow of that same ‘man out of compensation for that death, tried to frame another man for a crime, forged a summons in a federal case, and has been found to be a pedophile attracted to girls as young as twelve, but I thought he was a swell guy until someone implied that he SWATted someone!” ‘The claim that his reputation could be harmed at this point is farcical, and the defamation-proof doctrine allows this Court to say it will not participate in such a farce. “ The Plaintiff sporadically numbers his paragraphs in his Opposition, 6Additionally, as noted above, the Plaintiff doesn’t dispute that he has failed to properly allege malice. Instead, he tries to argue that the malice standard doesn’t apply, arguing that he is not a public figure. The claim he is not a public figure is equally farcical: he bombed a town for nearly a week and attempted to sway the 1988 presidential election, Kimberlin v. Quinlan, 6 F.3d 789, 791 (D.C. Cir. 1993). However, while the Plaintiff is a public figure—and he has failed to establish that any court found otherwise*—it isn’t necessary to decide that issue in this case. As pointed out in Mr. Walker's Motion to Dismiss, to prove false light, the Plaintiff has to show that “the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter,” Bagwell v. Peninsula Regional Medical Center, 106 Md. App. 470, 514 (1994), which is the same as the malice standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). Therefore, his failure to properly allege malice is fatal to his claim for false light invasion of privacy. Finally, it is worth noting that malice is not simply dislike for the Plaintiff, as the Plaintiff apparently thinks. Rather, “{tJhe ‘actual malice’ standard has nothing to do with ‘bad motive’ or “ill will’ or ‘malice’ in the ordinary sense of the term.” Foretich v, Capital Cities/ABC, Inc., 37 F, 3d 1541, 1551 n, 8 (4" Cir. 1994). Further, “*[a]ctual malice’ cannot be established merely by showing that: the publication was erroneous, derogatory or untrue...; the publisher acted out of ill will, hatred or a desire to injure the officiall.]” Capital-Gazette Newspapers, Inc. v. Stack, 293 Md. 528, 539 (1982). Rather, the Plaintiff must meet the New York Times v. Sullivan standard, and the Plaintiff fails to meet this burden. * The Plaintiff falsely accuses Mr. Walker of filing a motion to have him declared a public figure ina separate case, when his own citation to the docket indicates that a different person, Seth Allen, filed that motion. Further, he does not establish that the denial for Mr. Allen was on the merits. Likewise, he claims that another case in Virginia also determined the issue. In both instances, he fails to present credible evidence of such an outcome on the merits, and, therefore, this Court should disregard these allegations,v. THE PLAINTIFF FAILS TO PROPERLY PLEAD INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS While the Plaintiff continues to argue that he has properly alleged interference with prospective business relationships, in reality, he has failed to do so. Aside from the points he has conceded above, he tries to supplement his allegations of interference with an affidavit, Beside the fact that itis improperly supplementing his Complaint with new “facts” 994 A.2d at 434, and that it represents improper testimonial evidence offered by a convicted perjurer, itis simply a set of conclusory allegations. Instead of providing such boilerplate allegations, a “plaintiff[] must identify a possible future relationship which is likely to occur, absent the interference, with specificity.” Baron Financial Corp. v. Natanzon, 471 F.Supp.2d 535, 546 (D. Md. 2006). The Plaintiff has not even tried to meet this standard. Finally, as typical, the Plaintiff makes no proper allegation that he was damaged, or that any Defendant proximately caused such damage Therefore, he has failed to properly allege a claim for interference with prospective business relations. Vi. ‘THE PLAINTIFF FAILS TO PROPERLY PLEAD INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS As noted in Mr. Walker's motion to dismiss, the Plaintiff has failed to properly allege that he felt any distress at all. Further, the Plaintiff does not dispute that he has failed to allege a physical manifestation of his distress as required by Exxon Mobil Corp. v. Albright, 433 Md, 303, 71 A.3d 30, 63 (2013). Instead, he writes that “[iJllustrative of the cases which hold that a cause of action will lie for intentional infliction of emotional distress, unaccompanied by physical injury, is Womack v. Eldridge, 215 Va, 338 (1974)” and then goes on to discuss that Virginia case. However, that is a Virginia case, and not a Maryland case, and, therefore,irrelevant. Maryland law requires a physical manifestation of emotional distress, as recently as ‘two years ago, to “guard against feigned claims,” 71 A.3d at 63—which seems to be particularly appropriate in the instant case. Therefore, the Plaintiff has presented no reason why a physical manifestation of his alleged distress should not be required, nor has he actually alleged such manifestation, Furthermore, the Plaintiff has a causation problem. For instance, he blames the Defendants for death threats he has allegedly received and for an alleged trespass on his mother’s” property, but he makes no effort to explain how that conduct by third parties was proximately, legally caused by any conduct by the Defendants, Therefore, such allegations of ‘conduct by third parties cannot be considered when determining whether the Defendants caused the Plaintiff emotional distress. The only thing he alleges that the Defendants have done is 1) defame him or place him in a false light and 2) the supposed assault by Mr. Walker. However, these are not sufficient to constitute extreme and outrageous conduct as required by Batson v, ‘Shiflett, 325 Md. 684, 733 (Md. 1992), especially when one takes into account the personality of this Plaintiff as required in Harris v. Jones, 281 Md, 560, 568 (1977). The Plaintiff is a hardened criminal who is responsible for a man losing his life, and it is farcical to pretend that he is a delicate flower. Furthermore, the Plaintiff seems to be attempting to aggregate the conduct of the Defendants, even though he has failed to properly allege that they are in a conspiracy, Without a viable claim of conspiracy, this Court must determine whether the conduct of each Defendant, in isolation, is sufficient to constitute “extreme and outrageous conduct,” and the Plaintiff fails to © The Plaintiff, upon information and belief, lives at a house owned by his mother. 9make such a showing in relation to any Defendant. For all of those reasons, therefore, his claim that the Defendants committed intentional infliction of emotional distress must fail WHEREFORE, for all the reasons outlined above, Mr. Walker's motion to dismiss should be granted, and in the name of judicial economy, granted for all parties and all claims. Tuesday, September 1, 2015 Respectfully submitted, Melfi Aaron J. Walker, Esq Va Bari 4888. Manassas, Virginia 20108 (CERTIFICATE OF SERVICE Teertfy that on the 154 day of Seplembe . 2015, I served copies of this document on Brett Kimberlin at Bethesda, Maryland 20817, via U. S Mail, on the following co-Defendants via email: William Hoge via Patrick Ostronic; DB Capital Strategies and Dan Backer, Esq. via Dan Backer, Esq.; Michelle Malkin and Twitchy via Michael Smith, Esq. and Glenn Beck, the Blaze, Mercury Radio Arts, Erick Erickson, RedState, and Breitbart via Mark Bailen, Esq,