IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

BRETT KIMBERLIN,
Appellant

September Term, 2014:

Nos: 1553 and 2099

v.
September Term, 2015:
No. 365

AARON J. WALKER, ESQ., ET AL.

Appellees

Consolidated Appeals

APPELLEE WALKERS OPPOSITION TO APPELLANTS RESPONSE TO

ORDER TO SHOW CAUSE
NOW COMES Appellee Aaron J. Walker, Esq., and files this Opposition to
Appellants Response to Order to Show Cause and states the following:
1.

The Appellant offers no proper excuse or justification for his failure to

provide the necessary transcripts.

I.
APPELLANTS PRO SE STATUS DOES NOT EXCUSE HIS MISCONDUCT
2.

The Appellant falls back on a familiar refrain: that he is an ignorant pro se

who cannot be expected to follow the rules, writing that it is well established by the
Supreme Court and the Maryland Court of Appeals that cases should not be dismissed
where a pro se litigant failed to follow this or that rule. (Appellants Response to Order
to Show Cause (R.S.C.) 8) This is a familiar excuse he offers whenever his
misconduct is exposed to a court. For instance, attached as Exhibit A is an answer to
another show cause order (in another case) in which he admits to forging a summons and
claims his ignorance of court procedures led him to believe he could take a valid
summons, erase the name and address of the original intended recipient, and substitute an
entity that was not a party to that case. Attached as Exhibit B is the transcript of the April

9, 2014 hearing in this case in which he admits that he altered a certified mail green
card in an attempt to falsely obtain initial service of process on Mr. Akbar. Particular
attention should be paid to pages 22-23 where the Appellant offered the excuse that he
was pro se and Judge Ryon responded in frustration, Dont even use that with me. Just
as in those previous instances, the Appellant is now attempting to use his pro se status as
a shield protecting him not from a technical failure but an attempted fraud on this Court.
3.

For instance, the Appellants brief (KBr.) repeatedly and falsely attempts

to depict Judge McGanns July 1, 2014, decision as granting a motion to dismiss rather
than a motion for summary judgment.1 While there was plenty of evidence of this
deception prior to the Appellants attempt to supplement the record, the fact that the
Appellant knew it was a motion for summary judgment hearing and not a motion to
dismiss hearing is made clear on pages 37-38 of Supplemental Record Extract A
(S.E.A.) where Mr. Ostronic suggested that he could alter [his motion for summary
judgment] to [a] motion to dismiss. The Appellant objected to hearing the matter on a
motion to dismiss basis because Judge Burrell had already ruled on that issue. The
Appellant wasnt confused about the nature of the hearing on that day.
4.

Another deception is laid bare by Supplemental Record Extract B

(S.E.B.), representing the transcript of the first day of trial. By way of background, the
Appellant is attempting to challenge the constitutionality of MD CODE Cts. & Jud. Proc.
9-104, which prohibits convicted perjurers like him 2 from testifying. However, he was
granted the right to testify at trial, and, therefore, the Appellant is attempting to appeal a
victory with the absurd theory that he was unprepared to win his motion. In order to make
this claim, he has repeatedly and falsely suggested to this Court that he was granted the
right to testify on the day testimony was heard with passages such as the following:
On the first day of trial, Appellees again asked the judge to prohibit
Appellant from testifying and Appellant asked the judge to find the statute
unconstitutional. After a hearing, the judge refused to find it
For instance, at KBr. 10, the Appellant writes that Appellees filed a pretrial motion to
dismiss all the claims, which was heard by Judge McGann on July 1, 2014.
2
See, e.g., Kimberlin v. Dewalt, 12 F.Supp.2d 487, 490 n. 6 (D. Md 1998).
1

unconstitutional but ruled that Appellant could testify. By that point,

literally minutes before testimony was to begin, Appellant was wholly
unprepared to take the stand.
(KBr. 10) (emphasis added). This passage starts by claiming that he asked for a ruling
[o]n the first day of trial but claims that the decision came literally minutes before
testimony was to begin[.] In essence, he was attempting to mislead this Court into
believing that the trial actually lasted one day, not two, to bolster his absurd argument that
he was unfairly surprised by his victory. However, the newly-supplied transcript of the
first day of the trial (August 11, 2014) demonstrates that Judge Johnson did in fact rule in
his favor the day before the first witness was called. (S.E.B. 134-135)
5.

Furthermore, having this additional transcript underlines a point Mr. Walker

raised in his Appellees brief (WBr.). As Mr. Walker wrote in his brief:
the Appellants real complaint is not about the outcome of the Courts
decision [to set aside 9-104] but rather about the timing, and the Appellant
has not preserved that objection. There is nothing in the Record or Record
Extract indicating that he asked Judge Johnson for a continuance, which is
the ordinary remedy for unfair surprise, because he made no such motion.
Further, as noted above, there is no evidence in the Record or Record
Extract that he raised the issue prior to trial, demanding a quick resolution
so he can prepare to testify. Even when he told Judge Johnson that I may
not testify, (E.D. 179), he didnt mention any reluctance based on lack of
preparation.
(WBr. 7) With the first days transcript, this Court can now also see at S.E.B. 136-137
that Mr. Ostronic noted that all of a sudden now we have somebody testifying that we
had no idea was testifying five minutes ago. It would have been the perfect moment for
the Appellant to seek a continuance, but instead he remained silent. That dog didnt bark.
6.

Meanwhile, the S.E.A. demonstrates that the Appellant also misled the

Court in his Reply Brief (Reply). For instance, he writes that [w]hen Appellant sought
rulings on the constitutionality and applicability of Rule 9-104 [sic], Judge McGann and
Judge Jordan told him that he would have to wait for the trial judge to make that ruling.
(Reply 3) Beside the twice-noted misrepresentation of the hearing before Judge Jordan,
one would look in vain to see a single word about the constitutionality of 9-104 in the
hearing before Judge McGann. (S.E.A. 6-8, 49, and 58) Likewise, Judge McGann didnt

tell him that any challenge to 9-104 was reserved for the trial judge, only that you can
make that argument to the trial judge. (S.E.A. 58)
7.

Likewise, the Appellant claims that Appellant presented testimony at the

summary judgment hearing on July 1, 2014. (Reply 13) Now that this Court has a
complete record of what happened at that hearing, it can see that in fact, no testimony was
presented at that hearing. In fact, there was no evidence whatsoever presented by the
Appellant at a hearing in which he was required to provide at least some evidence
supporting each element of his claims. Thus, this Court can see that not only was Judge
McGann correct to grant summary judgment regarding some counts, but this Court might
wonder why any of the Appellants counts survived that hearing.
8.

The evidence supports the surmise that the Appellants decision to exclude

these two transcripts was not an accident. Rather it was part of a plan to actively mislead
this Court about what happened in the Court below. Just as his pro-se status shouldnt
excuse the decision to forge a summons or alter evidence related to service of process, the
Appellants pro se status should not shield him when he is attempting to carry out a fraud
on this Court.
9.

Furthermore, he hasnt established a rule of leniency toward pro se litigants

that applies under these circumstances. He claims that Maryland Courts have adopted this
approach, but the only Maryland case he cites, Simms v. State, 409 Md. 722 (2009),
involved a prisoner seeking review of his conviction using DNA evidence, and it is
limited to those circumstances. Further, even if this Court would find the federal cases
giving lenience to pro se litigants to be persuasive, the federal doctrine of leniency does
not hold that cases should not be dismissed where a pro se litigant failed to follow this
or that rule R.S.C. 8. Instead, the Supreme Court has stated that we have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel. Neil v. United States, 508 U.S.
106, 113 (1993). Indeed, the Neil court stated that experience teaches that strict
adherence to the procedural requirements specified by the legislature is the best guarantee
of evenhanded administration of the law. Id.

10.

Further, no leniency is granted to experienced litigators. In Kimberlin v.

KimberlinUnmasked, Case No. RWT-13-2580 (D. Md., Feb. 28, 2014) Judge Titus listed
nine different cases that the instant Appellant had filed in one court and found that he
could be expected to follow that courts procedures. Attached as Exhibit C is a partial list
of the litigation (including appeals) the Appellant has been involved in, pro se. Therefore,
as an experienced litigator who says he feels like a lawyer (S.E.B. 15), he wouldnt be
entitled to leniency in federal court. See, e.g., Holsey v. Bass, 519 F.Supp. 395, 406 n.27
(D. Md. 1981) (The experienced pro se litigator should be held to a higher standard than
the novice.); Raitport v. Chemical Bank, 74 F.R.D. 128, 133 (S.D. N.Y.1977) (This is
not a case involving an uneducated, naive plaintiff who may have inartistically stated a
valid cause of action.... Mr. Raitport has spent more time in court than many lawyers.);
Sanders v. Vargas, Case No. 11-C-405 (E.D. Wis., June 15, 2012) (the plaintiff's pro se
status does not, by itself, excuse his obligation to play by the rules and abide by
deadlines... because the court cannot ignore the fact that the plaintiff is an experienced
pro se litigator). Like the plaintiff in Raitport, the Appellant comes before this Court
wearing the cloak of a pro se applicant, 74 F.R.D. at 133, but in fact has spent more time
in court than Mr. Walker or Mr. Ostronic.
11.

Finally, there might be another reason why the Appellant failed to include

the July 11 transcript: because it included Judge Johnsons impassioned and persuasive
argument against discriminating against parties that have obtained counsel:
We dont have two sets of rules. One rule book for pro se litigants and one
rule book for lawyers. That would be an absolute disaster.... Theres no
requirement that a person have a lawyer. Speaking of the constitution, one
has the right to represent oneself if one chooses to do so.... But youre not
going to get any special dispensation just because you choose to represent
yourself.... [I]t would be fundamentally unfair if people could come in off
the street and represent themselves in cases where the other side is
represented by counsel and the Court would set aside the rules for the
person that is representing him or herself and then hold the side with the
lawyer to the rules. That would be fundamentally unfair.
(S.E.B. 43-44)
12.

In short, the Appellant is seeking refuge in his pro se status to hide an

attempted fraud on this Court and to obtain leniency that is not ordinarily granted to any
pro se litigantand certainly isnt given to experienced pro se litigators such as the
Appellant. That would be fundamentally unfair. Therefore, the Appellants defense of
his pro se status should be rejected.
II.
THE APPELLANTS REMAINING EXCUSES FOR FAILING TO INCLUDE
THE RELEVANT TRANSCRIPTS ALSO FAIL
13.

Aside from falling back on his pro se status, the Appellant tries to defend

his failure to include the relevant transcripts by: 1) misleading this Court about the
August 11, 2014, ruling while offering no cogent explanation for why he didnt provide
the July 1, 2014 transcript; 2) attempting to blame Mr. Ostronic for the Appellants own
failures; 3) falsely accusing Mr. Ostronic of irrelevant misconduct; and 4) attempting to
misconstrue this Courts rules. Each of these defenses should be rejected.
14.

In regard to the August 11, 2014, transcript, the Appellant attempts to

mislead the court, again, writing in R.S.C. 2 that Appellant did not initially include the
transcripts of the August 11 hearing because the final order on that issue was made the
following day. In fact, the transcript makes it clear that the judge made a final order on
August 11, but merely left the matter open for reconsideration. 3 If the Appellees had not
asked for reconsideration the next day, the same result would have occurred: Judge
Johnson would have allowed the Appellant to testify, if he chose to do so.
15.

In any case, it is not reasonable to credit the Appellants claim that he

believed that the August 12, 2014 [sic] hearing provided this Court with a sufficient
record. (R.S.C. 2) He is telling this Court that he reasonably excluded about half the
discussion about the application and constitutionality of the statute, including many of his
own arguments against it. Further, that defense is contradicted by a July 16, 2015, email
sent by the Appellant, where he justifies excluding that transcript as follows: I did not
order that since it was mostly jury selection, no trial testimony. (Exhibit D) Combined
with the Appellants continual attempts to mislead this Court into believing that there was
See, e.g., Record Extract D 11: Counsel, the Court will not change its ruling on the
motions yesterday.
3

no ruling in his favor the day before (see, e.g., supra 4), this deception should lead this
Court to reject the Appellants eleventh-hour excuses.
16.

With regard to the July 1, 2014, transcript, he offers no explanation at all

for the omission, writing instead that:

Appellant did not initially include transcripts of the July 1, 2014 hearing
because he, a pro se litigant, believed that the docket sheet listings of Judge
McGanns pre-trial orders were reasonably necessary for the determination
of the questions presented on appeal. Maryland Rule 8-501(c).
That is only an explanation for why he included those docket entries. It is not an
explanation for why he didnt include the July 1, 2014, transcript. Furthermore, if he
thought the only relevant part of those hearings was its outcome, then he wouldnt have
falsely told this Court that he had presented testimony during that hearing, 4 supra 7. He
excluded evidence of what occurred at that hearing, then misrepresented the nature of it,
and misrepresented what evidence was before the judge. Occams Razor says thats not
an innocent oversight. That is a deliberate attempt to mislead this Court.
17.

The Appellant also attempts to place the blame on Mr. Ostronic for the

Appellants own failure to obey the rules. Mr. Walker will let Mr. Ostronic fight his own
battles, except to state that upon information and belief, Mr. Ostronic has diligently
pointed outboth in and out of this Courtthat the Appellants proposed Record Extract
was insufficient.
18.

Indeed, Mr. Ostronic raised the issue of the Appellants failure to provide

these transcripts as far back as August 6, 2015. In a motion to dismiss filed on that date,
Mr. Ostronic complained that [w]hat is not produced is a copy of Judge McGanns order
or any transcripts from the hearing. Aug. 6 Motion to Dismiss 13. He also noted in 18
that Judge Johnson heard Appellants motion on August 11th but Appellant has only
included the August 12th transcript. Meanwhile on August 18, 2015, Mr. Walker filed a
motion to dismiss (WMTD) as part of a larger brief. Mr. Walkers Motion to Dismiss
Additionally, the Appellant thought that events at the hearing were significant enough to
discuss in detail. For instance, he complains about Judge McGann imposing sanctions at
that hearing (KBr. 9) and quotes Judge McGanns words (KBr. 12), all without providing
that transcript.
4

repeatedly berated the Appellant for making representations about what happened at the
July 1, 2014, hearing without providing the transcript of that hearing (WTMD xix-xx)
and noted in his brief that the Appellant was procedurally barred from challenging
McGanns ruling because he failed to provide a sufficient summary judgment record,
including that transcript. (WBr. 10-11) In the same brief, Mr. Walker accuses the
Appellant of excluding the August 11, 2014, transcript in order to deceive this Court.
(WBr. 6) So even if the Appellant was excusably confused up until that point, why didnt
he realize his error upon reading Mr. Walkers and Mr. Ostronics filings? If he had any
valid excuse for failing to include those transcripts before those documents were filed,
why didnt the Appellant recognize his error then and immediately order the transcripts?
Instead, about four months later and with dismissal hanging over his head like a Sword of
Damocles, the Appellant belatedly attempts to correct his error. This should be seen as
too little, too late.5
19.

Finally, the Appellant attempts to engage in finger-pointing at Mr. Ostronic

claiming that Mr. Ostronic misled the Court about the July 1, 2014 hearing, the Appellant
writing that [o]n November 30, 2015, counsel sent Appellant an email stating that he
would not correct his misleading statements. R.S.C. 5. First, the allegation is irrelevant:
even if true, it offers neither excuse nor justification for the Appellants misconduct
(which occurred before the alleged misstatements). Second, while Mr. Ostronic can fight
his own battles, upon information and belief Mr. Ostronic didnt refuse to correct a
misleading statement: he denied that anything he wrote was misleading (and it wasnt).
Indeed, if the Appellant has an email in which Mr. Ostronic admits that a statement he
made was misleading and stating that he would not correct it, one wonders why the
Perhaps sensing the weakness of his arguments the Appellant also misconstrues Md.
Rule 8-501(c) which states that [t]he fact that a part of the record is not included in the
record extract or an appendix to a brief shall not preclude an appellate court from
considering it. (R.S.C. 6) The Appellant thinks that the record includes his new
transcripts, but the record actually only refers to 1) the docket entries, 2) all the
pleadings, motions, exhibits (whether admitted into evidence or not), and other
documents filed in the court below. That does not include either the July 1 or August 11,
2014, transcripts.
5

Appellant didnt attach it. Sometimes, it is the dog that doesnt bark, Church of
Scientology v. IRS, 484 U.S. 9, 17-18 (1987), that is the most important evidence.
20.

Accordingly, the Appellant has offered no valid excuse or justification for

his failure to provide the relevant transcripts, and, therefore, he has failed to show cause
why this appeal should not be dismissed.
CONCLUSION
21.

According to an old Jewish saying, kindness to the cruel is cruelty to the

kind. Over the past year, this Court has been very kind to the Appellant as he has misled
this Court at every turn, stretching out what should have been a simple, slam-dunk
affirmance of a baseless appeal into a year and a half-long affair. It is the Appellant who
is claiming that he has suffered losses for which Appellees should compensate him. It is
the Appellant who wants to reach into the Appellees pocketswith the help of the
Maryland Courts. Anyone seeking to enlist this Courts help should play by its rules. If
following this Courts rules is too much of a burden for the Appellant, then this Court
should relieve every party of the burden of this litigation and dismiss this appeal.
22.

Alternatively, if this Court chooses to accept the Appellants late-breaking

excuses, and allow him to improperly supplement his record extract (without seeking
leave to do so), then Mr. Walker asks for an opportunity to supplement his brief and
motion to dismissand without allowing the Appellant the opportunity to respond. It is
unfair for this case to go on for about a year and a half with the record and record extract
being in one state, and then after briefing is over, weeks away from the decision, for the
Appellant to unilaterally amend the materials considered by this Court.
WHEREFORE, this Court should determine that the Appellant has not provided
sufficient justification or excuse for his failure to provide the relevant transcripts on a
timely basis, and dismiss the case; or, in the alternative, grant the Appellees an
opportunity to supplement their motions to dismiss and/or briefs; and grant all other relief
that is appropriate.

Friday, December 4, 2015

Respectfully submitted,

Aaron J. Walker, Esq. (Va Bar# 48882)

P.O. Box 3075
Manassas, Virginia 20108
Phone: (703) [redacted] (no fax)
AaronJW72@gmail.com

VERIFICATION
I, Aaron Walker, solemnly affirm under the penalties of perjury that the contents of
the foregoing paper are true to the best of my knowledge, information, and belief and that
all exhibits attached are true and correct copies of the originals.

Dated:

STATEMENT ON FONT
This document was typed in Times New Roman, 13-point font.

CERTIFICATE OF SERVICE
I certify that on Friday, December 4, 2015, I served copies of the Motion for Leave,
Motion to Dismiss and Appellees Brief on Brett Kimberlin at [redacted], Bethesda,
Maryland 20817, via U. S. Mail, on the following co-Appellees via email by their consent
through their counsel Patrick Ostronic, Esq.; and by email on Ali Akbar with his consent.

10