Attorney, Aaron Justin Walker, for Alleged Violations of the DC Bar Association Rules of
Proffesional [sic] Conduct, as Well as the Fact He is Likely to be Called as a Witness by the
Plaintiff, or Joined as a Defendant (Docket #18) (hereinafter MTDQ). In his motion the
Plaintiff argued that undersigned counsel should be disqualified 1) because of alleged falsehoods
in the Memorandum of Law in Support of the Joint Motion to Dismiss and Opposition to Leave
to Amend Filed by Defendants Sarah Palmer and Eric Johnson (Docket # 12) (hereinafter the
Joint Memorandum of Law), 2) because of alleged other misstatements out of court, and 3)
because undersigned counsel might suddenly be a witness or a party.
contentions are without merit. Further, this motion should be stricken as nothing more than a
naked attempt to prejudice this Court with irrelevant ad hominem attacks against counsel.
I.
THE PLAINTIFF HAS OFFERED NO VALID JUSTIFICATION TO DISQUALIFY
COUNSEL
2.
The Plaintiffs MTDQ should be denied because there is no basis for it, factually
or legally. The rule against attorneys acting as witnesses does not apply to these present facts.
Further, the Plaintiff has not demonstrated that the undersigned counsel made any false
statements to this Court. Finally, the Plaintiff cites a non-rule to attempt to argue that out of
court alleged falsehoods justify disqualification and then goes on to falsely accuse the
undersigned counsel of publishing falsehoods. For all of these reasons, the MTDQ should be
denied.
A.
First, the Plaintiff argues that the D.C. CODE OF PROFL CONDUCT R. 3.7 bars the
(2)
(3)
would
work
2
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OF
PROFL CONDUCT
R. 3.7. The Plaintiff reasons from this that because the undersigned counsel may eventually be a
witness, he cannot represent Defendants Palmer and Johnson at this point in the case. There are
several problems with that.
4.
First, the plain language of this rule states that the rule only applies at trial. That
is precisely how this Court read the Wisconsin rule in Olson v. Bemis Co., Case No. 12-C-1126
(E.D. Wis. April 26, 2013).
agreement, and the Plaintiff was represented by Peter Culp, Esq. The defendants in that case
sought to disqualify Mr. Culp and his firm from representing Olson because Mr. Culp had helped
negotiate the collective bargaining agreement at issue. This Court held, however, that Mr. Culp
could continue to personally represent Mr. Olson at every stage prior to trial even if Mr. Culp
was deposed during discovery, because the rule only applied to trials. Applied to the instant
facts, the Plaintiffs motion is meritless because this case is still at the pleading stage, and it is
very likely to be dismissed on jurisdictional grounds.
5.
The Plaintiffs claim that undersigned counsel might be added as a defendant is plainly a ploy
to attempt to disqualify the undersigned as counsel and perhaps to intimidate him. The Plaintiff
has claimed that the undersigned has defamed him for years, but it is only after the undersigned
filed a motion to dismiss in this case, threatening the future of this litigation, that the Plaintiff
suddenly decides the undersigned might potentially be a defendant. The Plaintiff, in essence,
believes that he should be allowed to veto these Defendants decision to hire Mr. Walker as
counsel with a strategic decision to name the undersigned as a Defendant. The Plaintiff should
not be allowed to do this.
3
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MTDQ, p. 4. This comes nowhere near the plain language of Rule 3.7, which requires a showing
of likelihood.
6.
Third, is it not clear on the face of the pleadings that the undersigned is a
necessary witness to any of the events of this case as required by Rule 3.7. This entire case is
based on what people have said, mainly on the Internet, about the Plaintiff. Eric Johnson lives in
Tennessee, Sarah Palmer lives in North Carolina, and undersigned counsel lives in Virginia. It
should not be surprising to this Court that counsel did not witness the Defendants posting
anything on the Internet, making any phone calls, sending any emails, or engaging in other forms
of communication that might or might not have occurred.
communications, counsel doesnt have any more knowledge about what these Defendants wrote
and said than any other member of the general public (for instance, by reading what was
allegedly written by the Defendants on various public websites). In Olson, this Court noted that
Mr. Culp might not be the only witness to relevant events and, therefore, might not be a
necessary witness. Id. at *6-7. Applied here, the Plaintiff has made absolutely no showing that
counsel has any non-privileged information relevant to this case that is possessed only by
counsel making him a necessary witness.
7.
counsel would work a substantial hardship on these Defendants. As stated in the attached
Declarations of Aaron Walker and Sarah Palmer, the undersigned counsel is the only pro bono
attorney available at this time. Depriving them of the undersigned counsel would effectively
strip Mrs. Palmer of having any attorney at all.2
Mr. Johnson, meanwhile, would be required to pay thousands of dollars to defend his right to
free speech, to his prejudice.
4
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8.
In Powell v. Alabama, 287 U.S. 45, 68-69 (1932), the Supreme Court expounded
In summary, Rule 3.7 doesnt apply to the facts of this case. It doesnt apply
because this case is not yet in trial and because the Plaintiff has not shown that the undersigned
counsel is likely to be a necessary witness. Finally, even if the rule did apply, the undersigned
counsel should still be allowed to represent these defendants because it would impose a
substantial hardship on these Defendants if he were disqualified. Accordingly, the Plaintiffs
argument based on Rule 3.7 is meritless, and his motion should be denied.
B.
Undersigned Counsel Has Not Made False Statements in the Joint Memorandum of
Law (Docket # 12)
10.
the undersigned allegedly made two misrepresentations in relation to non-party Brett Kimberlin
5
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in the Joint Memorandum of Law. Specifically, on page 13 of the Joint Memorandum of Law,
undersigned counsel wrote the following:
Turning back to the lone phone conversation, Mr. Johnson also denies the
allegation in paragraph 39 of the original complaint that he called the Plaintiff a
terroristhe only noted that Mr. Schmalfeldt is associated with the convicted
terrorist Brett Kimberlin. See, e.g., Kimberlin v. White, 7 F.3d 527, 528-29 (6th
Cir. 1993) (detailing how Mr. Kimberlin bombed a town for nearly a week,
costing one man his life).
The Plaintiff claims that two alleged falsehoods are packed into this passage: first, that Brett
Kimberlin is a convicted terrorist, and, second, that Mr. Kimberlins bombing campaign cost a
man his life.3
11.
terrorist. By way of background, this is how the Sixth Circuit described Mr. Kimberlins
bombing campaign:
Kimberlin was convicted as the so-called Speedway Bomber, who terrorized
the city of Speedway, Indiana, by detonating a series of explosives in early
September 1978. In the worst incident, Kimberlin placed one of his bombs in a
gym bag, and left it in a parking lot outside Speedway High School. Carl Delong
was leaving the high school football game with his wife when he attempted to
pick up the bag and it exploded. The blast tore off his lower right leg and two
fingers, and embedded bomb fragments in his wifes leg. He was hospitalized for
six weeks, during which he was forced to undergo nine operations to complete the
amputation of his leg, reattach two fingers, repair damage to his inner ear, and
remove bomb fragments from his stomach, chest, and arm. In February 1983, he
committed suicide.
Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993) (emphasis added). Most people would
believe that the crimes Mr. Kimberlin was convicted ofdetonating eight bombs in six days
under circumstances that involved [a] substantial risk of devastating personal injury to innocent
The Plaintiff admits that he is friends with Mr. Kimberlin on page 1 of his MTDQ as follows:
Mr. Walker makes the provably false statement that Plaintiffs friend, Mr. Brett Kimberlin of
Bethesda, Maryland is a convicted terrorist.
6
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by-standers,4amounts to terrorism.5
Kimberlin was convicted didnt label the crimes he committed terrorism,6 often statutory titles
do not reflect common names. For instance, in Wisconsin if one has sex with a person without
his or her consent, that person can be convicted of sexual assault in violation of Wis. Stat.
940.225. Most people, however, call that rape. Would the Plaintiff have this Court disqualify an
attorney who referred to a person convicted under 940.225 as a convicted rapist?
12.
Meanwhile, the Plaintiffs claim that it is false to state that Mr. Kimberlins
bombs cost a mans life is even more ridiculous. The Plaintiff writes that:
A person was, in fact, terribly injured in that bombing, which resulted in the amputation
of a leg. But it wasnt the bombing that killed him. It was the carbon monoxide from his
car engine in a closed garage by which he intentionally took his own life in 1983, five
years after the bombing. Thus the claim that Mr. Kimberlins act cost this unfortunate
man his life is incorrect[.]
This callous assessment of the cause of Mr. DeLongs death closely reflects the interpretation
that Mr. Kimberlin himself asserted in Kimberlin v. DeLong, 637 NE 2d 121, (Ind. Sup. Ct.
1994). In that case, Sandra DeLong, the widow of Carl DeLong, sued Mr. Kimberlin for both
causing both her own injuries and her husbands suicide. [A] jury trial resulted in judgments
against defendant-appellant Brett Coleman Kimberlin in the sum of $360,000 for personal
injuries to Sandra Sue DeLong and $1,250,000 for the wrongful death of Carl David DeLong.
Id. at 123. Mr. Kimberlin argued before the Indiana Supreme Court that the suicide was an
7
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 7 of 22 Document 19
intervening cause of Mr. DeLongs death, and, therefore, he was not responsible as a matter of
law for Mr. DeLongs suicide. The Indiana Supreme Court brushed this argument aside and
affirmed his liability for Mr. DeLongs death by modifying the common law of Indiana so that
suicide was no longer considered an intervening cause of death from an intentional tort such as
this as follows:
In the present case, the complaint alleged intentional injury. Kimberlins federal
criminal conviction ... establishes his conduct as malicious and thus intentional
rather than negligent. Moreover, Carls DeLongs death, although occurring more
than four years after the explosion, was within the scope of harm intended by
Kimberlins intentional criminal conduct. Under such circumstances, we decline
to treat suicide as independent intervening cause protecting a highly culpable
defendant from liability for his victims death. We hold that an action may be
maintained for death or injury from a suicide or suicide attempt where a
defendants willful tortious conduct was intended to cause a victim physical harm
and where the intentional tort is a substantial factor in bringing about the suicide.
Id. at 128-29. In short, Mr. Kimberlin is responsible for Carl DeLongs death as verified by the
Indiana Supreme Court. Therefore, the undersigned counsels statement was correct.
13.
More fundamentally, the Plaintiff does not cite any law or rule that says that if an
attorney makes one false statement (or two) she must be disqualified from appearing in a case.
He cites the District of Columbias Rules of Professional Conduct, but that doesnt suggest a rule
of automatic disqualification in a particular case. Therefore, the Plaintiff has not asserted any
factual basis for disqualification or any legal basis for disqualification. For this reason the
Plaintiffs motion should be denied because it is frivolous.
C.
Undersigned Counsels Comments Unrelated to Any Case Before This Court Do Not
Disqualify Him as Defense Counsel.
14.
In the second section of the Plaintiffs MTDQ, the Plaintiff cites a non-rule,
8
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EC 9-6 Every lawyer owes a solemn duty to uphold the integrity and honor of his
profession; to encourage respect for the law and for the courts and the judges thereof; to
observe the Code of Professional Responsibility; to act as a member of a learned
profession, one dedicated to public service; to cooperate with his brother lawyers in
supporting the organized bar through the devoting of his time, efforts, and financial
support as his professional standing and ability reasonably permit; to conduct himself so
as to reflect credit on the legal profession and to inspire the confidence, respect, and trust
of his clients and of the public; and to strive to avoid not only professional impropriety
but also the appearance of impropriety.
In fact, what the Plaintiff is citing is not a rule and has never been a rule. First, the ABA model
rules are not rules in and of themselves. Second, the Code of Professional Responsibility has
been abolished in each of the jurisdictions implicated by counsels representation: Virginia, the
District of Columbia, and Wisconsin. Third, what the Plaintiff has cited is Ethical Consideration
9-6.
Responsibility, such considerations are aspirational and that [t]he Disciplinary Rules, unlike
the Ethical Considerations, are mandatory in character. What the Plaintiff has cited is at best an
ideal, not a rule.
15.
The Plaintiff then uses this non-rule as an excuse to engage in a broadly based ad
hominem attack on the undersigned counsels character in general. It would take a two hundred
page motion and a mini-trial to fully rebut the stream of falsehoods the Plaintiff and his declarant
write, but the untrustworthiness of the Plaintiffs presentation can be shown with relative ease.
In short, the Plaintiffs ad hominem attacks on undersigned counsel as having defamed him is
legally irrelevant and false.
A.
The Plaintiff Falsely Claims that Undersigned Counsel has Defamed Him.
16.
In the MTDQ and its exhibits, the Plaintiff repeatedly and falsely accused the
undersigned counsel of making false accusations against him outside of a courtroom context. In
the MTDQ, for instance, the Plaintiff accuses counsel of falsely accusing the Plaintiff of making
9
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a rape threat. Meanwhile, Exhibit 4 to the MTDQ is described by the Plaintiff as Defamatory
Tweets7 from Defendants Counsel Aaron Walker About Plaintiff Going Back to 2013.
MTDQ, Exhibit 4, p. 1. Thus, the Plaintiff is representing to this Court that each and every one
of these messages are defamatory. However, each and every message he quoted has a basis in
factaside from those which are obviously pure jokes not to be read as serious statements of
fact. While this Court surely doesnt want to have a mini-trial regarding each and every
negative statement the undersigned counsel has made about the Plaintiff, there are a few
instances where the proof is relatively easy to obtain.
17.
For instance, one of the more bizarre examples of the so-called defamation is
found on page 3 of the Plaintiffs Exhibit 4, where the Plaintiff accurately quotes counsel as
asking a third party named Roger Shuler, did you ever denounce your friend Bill Schmalfeldt
for seeking a prior restraint on his enemies? The most ridiculous element of that accusation is
that the Plaintiff apparently is asserting that it is defamation to say that he has sought a prior
restraint on freedom of expression in a document filed in this case where he is presently seeking
a prior restraint on freedom of expression. Even if the accusation that he was seeking a prior
restraint was untrue when counsel first said it, it is true now.
18.
Further, it was true when counsel wrote it. This can be determined by examining
publicly available court records. The message accusing the Plaintiff of seeking a prior restraint
on freedom of expression was written on July 23, 2015. Earlier that month, on July 2, 2015, the
instant Plaintiff filed an amended complaint in Schmalfeldt v. Grady, et al. (I), Case No. 1:15-cv01241-RDB (D. Md. 2015)8 (Document #13 in that case), one of many cases the Plaintiff has
filed alleging harm by the expression of the various defendants. On page 12 of that amended
7
8
complaint, the same Plaintiff sought [a]n order enjoining defendants from engaging in further
harassment. Since the alleged harassment consisted primarily of writing things the instant
Plaintiff didnt like in Internet postings to the world at large, this request amounted to seeking a
prior restraint on those defendants freedom of expression. Nor was this the only example of the
instant Plaintiff filing lawsuits in order to try to silence his critics by equitable relief. Thus, what
counsel wrote was true at the time it was written.
19.
By way of
stereotyped as prostitutes or mail order brides. The Plaintiffs false assumption that undersigned
counsels wife is a mail order bride is but one example of the racist comments he has made
about her.
20.
Another, more serious example of the instant Plaintiffs propensity for targeting
his enemies families becomes relevant when confronting the accusation that the undersigned
11
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counsel falsely accused the Plaintiff of making a rape threat. Specifically, on pages 2-3 of the
MTDQ, the Plaintiff writes:
an individual in Texas ... falsely accused Plaintiff of posting a rape threat on his
blog. Even after local police responded to this individuals complaint, examined
Plaintiffs computer and found nothing that could remotely be called a threat, Mr.
Walker continued to assert on his Allergic To Bull blog that Plaintiff had
indeed made such a threat. Plaintiff suggested to Mr. Walker that he stop telling
this lie or face legal ramifications.
In short, he is accusing an unnamed individual of falsely accusing him of making a rape threat
and accusing the undersigned counsel of repeating the allegation. Upon information and belief,
that unnamed individual is veteran journalist Lee Stranahan and his attached Declaration, along
with the Declaration of Aaron Walker, establish that the allegations the undersigned counsel
made were well-founded in fact. Specifically, a third party threatened to post Mr. Stranahans
address on the Internet so that someone could go to his house and rape his wife while he was
away on business. The Plaintiff defended that conduct by saying that this person didnt actually
post the Stranahans address on the Internet. Then the Plaintiff posted the Stranahans address
on the Internet. The Plaintiff later wrote a vile fantasy in which Mr. Stranahan was raped. The
undersigned counsel accurately reported on this threatening conduct and expressed opinions
about the Plaintiffs behavior. While the Plaintiff may not agree with undersigned counsel
opinion, counsel did not once defame the Plaintiff by falsely claiming he made a rape threat.
21.
as saying [a]pparently Schmalfeldt is so demented he forgot he told Judge Grimm that he was
demented. That was in response to Mr. Schmalfeldt writing that: Mr. Hoge might want to
consider the impact of calling a man suing him for defamation admittedly demented.
admitted no such thing. The fact that the Plaintiff has admitted to having dementia is verified
by records found in PACER. Attached as Exhibit B to this Opposition is a letter the Plaintiff
12
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wrote to Judge Grimm of the U.S. District Court for the District of Maryland, in the case
currently styled Kimberlin v. Frey, Case No. 8:13-cv-03059 (D. Md. 2013)9 in which he tells
Judge Grimm on page 2 the following about the state of his health: There are other outward and
not-quite-so-visible signs of increased degeneration, including the onset of early Parkinsons
disease dementia. In other words, the accusation that the Plaintiff has admitted to having
dementia is truebased on publicly available court documents.
22.
Wide
Enough:
2000-2010,
My
By way of background, Mr. Schmalfeldts friend Brett Kimberlin sued the undersigned counsel
and around two dozen others for an alleged RICO conspiracy. The case was originally styled
Kimberlin v. National Bloggers Club (I), but every claim against every defendant but Patrick
Frey was dismissed. Thus it became Kimberlin v. Frey. Further, in the two and a half years the
case has been pending, Judge Grimm has stepped aside to be replaced by Judge Hazel.
10
This image taken from the Google Books listing, available at https://books.google.com/
books/about/No_Doorway_Wide_Enough.html?id=im-pbwAACAAJ&source=kp_cover&hl=en
13
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The same is true for all of the remaining allegedly defamatory statements by the
undersigned counsel. In each instance, the statements at issue are either 1) an obvious joke not
to be taken as a statement of fact, 2) a statement that does not disparage of the Plaintiff,11 or 3) if
it is disparaging and presented as a statement of fact, then the statement was true. The claim that
the undersigned counsel wrote anything defamatory about the Plaintiff is, therefore, both
irrelevant, and false.
A.
This Court Should Credit the Declaration of Aaron Walker and Disregard the
Declaration of Brett Kimberlin as Non-Credible.
24.
The Plaintiff also attaches the Declaration of Brett Kimberlin as Exhibit 1 to the
MTDQ. However, the Declaration is contradicted on every relevant point by the Declaration of
Aaron Walker. Thus, it becomes a contest of he said, he said, but the Plaintiff has presented
no evidence why undersigned counsel is not to be trusted, while there is plenty of reason to doubt
the word of Mr. Kimberlin.
25.
To begin, Mr. Kimberlin is not only a convicted terrorist, but also a convicted
perjurer. See Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 490 n.6 (D.Md. 1998). That same case
also demonstrates a more recent deception. As noted above, the widow DeLong won a judgment
against Mr. Kimberlin for over $1 million for her injuries and the wrongful death of her husband.
In DeWalt, the court described how after being paroled, Mr. Kimberlin had engaged in deceitful
maneuvers to hide his ability to pay the widow DeLong. Id. at 494. The DeWalt court goes on
to outline how [d]espite a healthy income the Plaintiff attempted to avoid paying the woman
he wounded and widowed by creating a shell corporation, BKE, Inc., which Mr. Kimberlin
11
For instance, on page 19 of Exhibit 4, undersigned counsel is quoted as saying that Brett
Kimberlin was present for a hearing and looked like a disheveled homeless man. This is a
statement only disparaging of Mr. Kimberlin.
14
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maintained 100% control over. Id. at 491. Using that corporation, Mr. Kimberlin funneled his
income into BKE, Inc.s bank accounts, and then used corporate money to pay for personal
expenses. Id. at 493. In addition to all of that, he also committed loan fraud as follows:
Following the Supreme Courts denial of certiorari [in the DeLong case],
petitioner continued to ignore the outstanding judgment. On May 16, 1996 he
submitted a mortgage loan application denying that he had any outstanding
judgments against him. A $308,000 mortgage loan was approved for the
purchase of a house in Bethesda, Maryland.
Id. at 491. In short, he did his level best to cheat a woman he wounded and widowed out of a
judgment meant to repair some of the damage he had done to her, and he obtained a bank loan
without disclosing to them that he owed her that money. Indeed, his conduct was so outrageous
that his parole was revoked.12
26.
Turning to more recent events, in 2013, the Plaintiff sued about two dozen
individuals and corporations in Kimberlin v. National Bloggers Club, et al. (I), today referred to
as Kimberlin v. Frey (hereinafter Kimberlin v. NBC (I)).13 The Plaintiff evidently intended to
sue Twitchy, LLC, then a Colorado media company, but neglected to include the company in the
caption.14 Accordingly, that court did not issue a summons for Twitchy, LLC. Mr. Kimberlin,
who has also been convicted of crimes related to document forgery,15 decided to forge a
summons for Twitchy. Attached as Exhibit C is Mr. Kimberlins Verified Response to March
4, 2014 Order to Show Cause filed in that case where he admitted to forging the summons and
offered the thin excuse that because he was a pro se plaintiff, he didnt know he shouldnt forge a
12
15
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court document. Apparently, Mr. Kimberlin thinks that one needs three years of law school to
learn not to falsify court documents.
27.
That same excusethat he is just a pro se who didnt know any betterwas
offered by Mr. Kimberlin in another case, Kimberlin v. Walker, et al., No. 380966V (Md. Mont.
Co. Cir. Ct. 2013) affd in Case Nos. 1553, 2099 and 0365 (Md.App. Feb. 2, 2016). In that case,
Mr. Kimberlin submitted two different filings purporting to show that he had performed initial
service of process on a Defendant named Ali Akbar. Both filings included a copy of a certified
mail green card. In the first filing, the green card checkbox next to restricted delivery was
empty. In the second, the green card was marked restricted delivery.16 Attached as Exhibit D
is a transcript of the April 9, 2014 hearing in Kimberlin v. Walker, et al.,17 in which Mr.
Kimberlin admitted to altering the green card, again offering his pro se status as an excuse.
28.
Indeed, Mr. Kimberlin has even misstated the truth regarding his own exhibits.
For instance, attached as Exhibit E is an Opposition that Mr. Kimberlin filed in Kimberlin v.
NBC (I). In paragraph 48, the Plaintiff claims that he received a message (allegedly from a
sheriffs office) that read: LEAVE HIM ALONE. DONT GO THERE. Mr. Kimberlin stated
in that document that he interpreted this as a threat to leave Mr. Frey alone and not to contact
his supervisors. Id. However, if one examines the exhibit he presents which allegedly proves
the claimattached as Exhibit Fthe entirety of the phrase is Dont go there. The phrase
leave him alone, was wholly made up. Thus, he changed the capitalization of the message and
added an entire sentence to it. Indeed, even after the undersigned counsel pointed out this
16
The difference is significant because under Maryland law, initial service of process can be
performed by mail, but only if it is sent by certified mail, restricted delivery, to ensure that the
summons and complaint does in fact reach the defendants hands.
17
As suggested by the PACER notations above, this transcript was originally filed as an exhibit
to a motion filed in Kimberlin v. NBC (I).
16
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discrepancy to Mr. Kimberlin,18 Mr. Kimberlin continued to repeat this falsehood without
making any effort to explain the discrepancy.19
29.
Finally, Mr. Kimberlin has misstated the truth about Mr. Walker when the proof
he made a false statement is right in front of him. In the same Opposition attached as Exhibit E
above, Mr. Kimberlin writes in 41 (pp. 31-32) that Defendant [Aaron] Walker has even
imputed in a recent blog post that Plaintiffs daughter is fair game for destruction because of
corruption of blood. Exhibit z. Attached as Exhibit G to this filing is his Exhibit Z, which is
an email where he extensively quotes from a piece the undersigned wrote as saying.
For me, one of the great underappreciated clauses of our Constitution is in the
Treason clause. It says: but no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person attainted. The second
part of that is fairly easy to understand, but what about the first[?] What the hell
do they mean by the corruption of the blood?
Well, the answer is they are saying you cannot punish the family of a traitor as
though they were traitors, too. It is a talisman of what makes this country great.
Fundamentally we dont care who your ancestors were. They could have been
kings, they could have been beggars. They could have been heroes and they
could have been terrorists. We dont care. Because you are judged as you.
So not knowing this girl, she enjoys the presumption of innocence that belongs to
all strangers. Given the way Brett Kimberlin lies about everything, I have no
reason to think he is telling her the truth about what is going on and therefore I
have no reason to think she approves of what is actually happening here. If she
knew the truth she would know that her father has been working for years to
suppress the truth about his illegal and immoral conduct, and his criminal and
immoral conduct, combined with his attempt to silence his critics, has brought all
this attention on his family.
18
But allegedly a few people have harassed her online, on her facebook and the like.
There is always concern, of course, that Brett or his allies might be faking a lot of
that behavior <http://patterico.com/2012/06/26/strong-circumstantial-evidencethat-brett-kimberlin-is-astroturfing-the-alleged-threats-against-him-and-hisallies/>. But regardless, if any person draws any negative conclusion about her
based on her father, they are not being charitable enough. They are forgetting that
even when we are talking about Benedict Arnold, we do not hold the child
responsible for the conduct of the father.20
In short, the undersigned wrote that Mr. Kimberlins self-described daughter should not suffer
because of Mr. Kimberlins misconduct because in America we reject the principle of the
corruption of the blood. Mr. Kimberlins claim that undersigned counsel said that one should
target her under the principle of the Corruption of the Blood is knowingly false. Further, just as
with the alleged message from the sheriffs office, this discrepancy was pointed out to Mr.
Kimberlin,21 and Mr. Kimberlin has repeated the false remark without any effort to explain the
discrepancy.22
30.
accusation about someone that there must be some truth to itthat it cannot be made up from
whole cloth. In Mr. Kimberlins case, it is not safe to make that assumption. These are strong
words, but they are justified by the forgoing. He will misstate the truth even when the truth is
only a few page turns away. Further, he has a track record of misstating the truth about what the
undersigned has said and done.
20
All of this is a mostly accurate cut and paste from a piece the undersigned wrote called
EXCLUSIVE: My Motion to Dismiss Convicted Terrorist Brett Kimberlins RICO Suit
available at http://allergic2bull.blogspot.com/2013/12/exclusive-my-motion-to-dismiss.html.
The only relevant difference is that whenever the original had a link to a webpage, the Plaintiff
had somehow pasted a copy of that link right after, surrounded by arrow points (< and >).
Otherwise it was the same text that the undersigned wrote.
21
See Defendant Hoges Reply to Plaintiffs Oppositions, Docket #56, pp. 16-17 in Kimberlin
v. NBC (I) (outlining how Mr. Kimberlins own exhibit contradicts his claims).
22
See Second Amended Complaint, Docket #135, at 249 (p. 75) in Kimberlin v. NBC (I)
(repeating the claim, contradicted by his own exhibit, that the undersigned counsel believed Mr.
Kimberlins daughter should be targeted because of the corruption of the blood).
18
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31.
nearly every particular, and because Mr. Kimberlin has no credibility, his Declaration should be
discounted in its entirety. In addition to the difficulties of credibility, Mr. Kimberlin testifies as
to the circumstances of undersigned counsels termination from a job, an event he did not
witness. He also includes a copy of an email that was supposed to remain confidential under a
court order in the Circuit Court of Prince William County, Virginia,23 and, in any case, since it is
unsworn, it is hearsay.
32.
The truth is that the undersigned is a graduate of Yale Law School and an attorney
in good standing in two jurisdictions who has been admitted to practice before three federal
courts, including this Court. The undersigned counsel has never been disciplined by a bar
association, and he has never committed any crime worse than a traffic infraction. Further, he
has achieved all of this despite his hidden disabilities and the prejudice and discrimination they
inspired. To the extent that the undersigned counsels record could be put on trial in this case,
he gladly would measure his life and character against that of the Plaintiff or Mr. Kimberlin.
The undersigned counsels worst offense would seem to be engaging in off-color humor
outside of the courthouse.
33.
In summary, the Plaintiff has moved to disqualify the undersigned counsel based
on a non-rule and without evidence that counsel has actually fallen short of the aspirations of his
profession. Further, as noted previously in this filing, the Plaintiff has failed to properly invoke
the rule against attorneys serving when they might be witnesses, and has falsely accused the
undersigned counsel of lying in court documents.
disqualify counsel has no basis in law or fact. It is frivolous, and it should be denied.
23
II.
THE PLAINTIFFS MOTION TO DISQUALIFY COUNSEL SHOULD BE STRICKEN
34.
In the prior pages, the Defendants have demonstrated that there is no basis in law
to disqualify the undersigned as counsel. The Plaintiff has cited rules that dont apply or dont
exist and made false accusations of dishonesty in order to argue for disqualification. What is
manifestly obvious from the forgoing is that the Plaintiff is not only wrong, but also that he is
arguing in bad faith.
35.
As noted in Environ Products, Inc. v. Total Containment, Inc., 951 F.Supp. 57,
59-60 (E.D. Pa., 1996), [m]otions to strike usually will be denied unless the allegations have no
possible relation to the controversy and may cause prejudice to one of the parties. Wright &
Miller, 1382 at 685-90 (emphasis added). This improper and frivolous motion precisely fits
the exception to the rule. The Plaintiffs MTDQ has no possible relationship to the case, and it is
plainly designed to cause prejudice to Defendants Palmer and Johnson by their association with
counsel. See, e.g. Raghavendra v. Trs. of Columbia Univ., 686 F. Supp.2d 332, 336 (S.D.N.Y.,
2010) (striking a large number of motions, including a motion to disqualify counsel, because
they were replete with ad hominem remarks and irrelevant materials); Jorgensen v. Prudential
Ins. Co. of America, 852 F.Supp. 255, 260 (D.N.J., 1994) (striking a voluntary dismissal because
it was filed for an improper purpose); and Fleming v. Parnell, Case No. C13-5062 BHS at 8,
(W.D. Wash. April 17, 2014) (granting a motion to strike where information related to
confidential settlement negotiations were included for an improper purpose). The court in
Alvarado Morales v. Digital Equipment Corp., 669 F.Supp. 1173, 1187 (D.P.R., 1987) reminds
us that [t]he federal courts do not provide a forum for mudslinging, name calling and
privileged defamation. Toward this end, a court has inherent power to strike scandalous
matter from any document submitted to it. In the Matter of REA Holding Corp., 447 F.Supp.
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Case 2:15-cv-01516-NJ Filed 03/08/16 Page 20 of 22 Document 19
167, 171 (S.D.N.Y., 1978). The Defendants respectfully request that this Court exercise that
power and strike the Plaintiffs MTDQ.
36.
Further, even if this Court was not convinced that the entirety of this motion
should be stricken, at the very least the Plaintiffs Exhibit 3 should be stricken, because the
entirety of that exhibit consists of documents obtained in a case where a protective order had
been put into place as noted supra page 19.
WHEREFORE, this Court should deny the Plaintiffs motion to disqualify counsel, strike the
motion in its entirety (or at the minimum, Plaintiffs Exhibit 3), and provide all other relief that is
just and equitable.
Respectfully submitted,
s/ Aaron J. Walker
Aaron J. Walker, Esq.
Attorney for Defendants Johnson and Palmer
Va Bar# 48882
DC Bar #481668
P.O. Box 3075
Manassas, Virginia 20108
(703) 216-0455
(No fax)
AaronJW1972@gmail.com
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VERIFICATION
I, Aaron Walker, state under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct and that all exhibits are true and correct copies of
the originals.
Executed on Tuesday, March 8, 2016.
s/ Aaron J. Walker
CERTIFICATE OF SERVICE
I certify that on the 8th day of March, 2016, I served copies of this document on William
Schmalfeldt by email by consent.
s/ Aaron J. Walker
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EXHIBIT A
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IN THE
COURT OF SPECIAL APPEALS FOR MARYLAND
BRETT KIMBERLIN,
Appellant,
v.
AARON WALKER,
WILLIAM HOGE,
ALI AKBAR,
and
ROBERT STACY MCCAIN,
Defendants.
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TABLE OF CONTENTS
STATEMENT OF THE CASE
STATEMENT OF FACTS
ARGUMENT
I.
II.
III.
IV.
V.
20
23
31
32
33
CONCLUSION
34
CERTIFICATE OF SERVICE
35
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TABLE OF CITATIONS
Cases
American Stores v. Byrd, 181 A2d 333 (Md. 1962)
26
24
Baufiled v. Safelite Glass Corp, 831 F. Supp. 713 (D. Minn. 1987)
27
27
26
26
Carter v. Aramark Sports and Ent Services, Inc., 153 Md. App. 210 (2003) 26
Conner v. Scruggs, 821 So 2d 542 (LA App. 2002)
26
21
26
31
31
26
26
22
30
Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181 (1963)
31
25
29
27
21
31
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26
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26
18
31
31
26
34
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34
pasSIm
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23
23
18 U.S.C. 5005-26
18 U.S.C. 5010(b)(2)
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Plaintiff
withdrew the stalking and harassment claims because they did not allow any
private cause of action. The court, in a pretrial proceeding, dismissed the abuse of
process, conspiracy to abuse process, malicious prosecution and infliction of
emotional distress claims. RE-B. Plaintiff proceeded to a jury trial against four
defendants on the defamation and false light claims. (The fifth defendant
confidentially settled the case in Appellant's favor.)
presentation of the evidence, the trial court, Judge Eric Johnson presiding, directed
a verdict on both counts. Appellant filed a motion for new trial but Judge Johnson
had resigned and
SQ
in essence that since he did not have the transcripts, he was denying the motion.
RE-C He then issued a final order, and Appellant filed his third notice of appeal in
the case.
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withdrew the stalking and harassment claims because they did not allow any
private cause of action. The court, in a pretrial proceeding, dismissed the abuse of
process, conspiracy to abuse process, malicious prosecution and infliction of
emotional distress claims. RE-B. Plaintiff proceeded to a jury trial against four
defendants on the defamation and false light claims. (The fifth defendant
confidentially settled the case in Appellant's favor.)
rl
presentation of the evidence, the trial court, Judge Eric Johnson presiding, directed
Judge Johnson had resigned and so the motion was ruled on by Judge Richard
a verdict on both counts. RE-D 271. Appellant filed a motion for new trial but
Jordan who ruled in essence that since he did not have the transcripts, he was
denying the motion. RE-C He then issued a final order, and Appellant filed his
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third notice of appeal in the case. This Court consolidated all three of those
appeals and ordered Appellant's lead brief to be filed on July 31, 2015.
STATE:MENT OF THE FACTS
Maryland.
2011 and therefore Appellant sued him in Montgomery County Circuit Court for
An activist blogger named Seth Allen began defaming Appellant on his blog in
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Aaron Worthing, who was well known online as the publisher of the antiMuslim "Everyone Draw Mohammed" blog, was outraged by the judgment and
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offered to assist Mr. Allen in getting it overturned on a motion for new trial. Mr.
Worthing portrayed himself as a Virginia attorney and, in December 2011, filed
several pleadings on Mr. Allen's behalf to overturn the judgment. RE-D, p. 58
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(All page numbers in this brief refer to the trial transcript page numbers in the
Record Extract, Exhibit D).
Walker from Manassas, Virginia. Because Mr. Worthing had filed documents in
the Circuit Court, Appellant advised the court that Mr. Worthing had filed the
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Appellant learned that Mr. Worthing was actually an attorney named Aaron
documents under a pseudonym, and that he was really Aaron Walker. On January
9, 2012, at a hearing scheduled in the case, Mr. WalkerlWorthing came to Court
and demanded that the judge seal his identity because Muslims could target him
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Walker followed Appellant to the Circuit Court waiting room, committed battery
against him, and took his iPad. Police responded and Appellant was treated at
Suburban Hospital for a contusion to the eye and back pain. Appellant later filed
for a Peace Order and criminal charges for assault against Mr. Walker.
A few days later, after Mr. Walker's employer found out about the assault and
his activities as publisher of the Muslim hate blog, the employer fired Mr. Walker
for attacking Muslims, doing so on company time and on company premises, and
for placing other employees in danger. 75-6
Mr. Walker blamed Appellant for his misfortunes and therefore he rallied a
group of right wing extremists to destroy the reputation and employment of
Appellant through a series of campaigns based on false narratives and malicious
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About Brett Kimberlin," using the template of his Muslim hate blog-Le., create a
false narrative and then use social media to get others to pile on. In the case of the
legal actions. He acted in concert with Appellees Ali Akbar, William Hoge and
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Muslim blog, Mr. Walker's false narrative was that the Prophet Mohammed was a
pedophile and a terrorist, and that was what he also called Appellant.
From May 2012 through September 2013, Appellees published thousands of
blog posts, Twitter tweets and other forms of social media falsely alleging that
Appellant (1) got Appellee Walker fired from his job, (2) made up the entire story
about the court room assault, 72 (3) forged hospital records from the assault, 71
and (4) was a pedophile who raped his wife. The stress from all this proved too
much for Appellant's wife and she suffered a mental health issues. Appellant
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sought to have her evaluated onI y to find that Appellees Walker and Roge were in
the courtroom. They twisted the hearing to create more false narratives, such as
telling their readers that Appellant had falsely imprisoned his wife, threatened her
and sexually abused her.
offered to pay her money to lie about Appellant, launched a fundraising campaign
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contacted them and told them that the things they were saying about Appellant
She repeatedly
were not true and to remove them from the Internet. Appellee's Walker and Hoge
refused to remove the defamatory information they had published on the Internet.
Instead, they doubled down and falsely asserted that Appellant was threatening his
wife and that she was under duress and that she needed protection. Appellant
Walker even wrote to her that Appellant was "an unfit father" and that she could
get protection from the prosecutor if she would accuse Appellant of a crime.
pornography in his home and that he watched his young daughters undress.
allegations, which was granted, and the Department of Child Services conducted
Appellee Walker called the FBI and falsely told them that Appellant had child
Finally, Appellant asked the family court to order an investigation of these false
extensive interviews of everyone in Appellant's family and determined that the
allegations were wholly specious and without merit.
Appellees then began a full-throated defamation/false light campaign against
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Appellant by posting articles and tweets calling him a pedophile, rapist, and sex
abuser. They created or appropriated an online graphic of a "Pedo Bear" (an
online graphic connoting an evil child sex predator) with Appellant's photo
superimposed on it and repeatedly posted this in tweets and articles over months.
Aaron Walker-Ailergic2Bull, Twitter@AaronWorthing,
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August 3, 2015-For the Pedophile Brett Kimberlin, It's All About the Kids
August 1, 2013-if you just believe in helping get her kids away from her
pedophile husband
July 31, 2013-Pedophile Brett Kimberlin Violates A Domestic Violence
Protective Order
July 30, 2013-Brett Kimberlin is a Pedophile
August 10, 2013-Twitter-LG is the paid troll of pedophile Brett Kimberlin
August 10, 2013-Twitter-I suggest we rechristen Team Kimberlin as Team
Pedophilia
August 6, 2013-Twitter-The Pedophile #BrettKimberlin Brass Knuckle
Defense
August 5, 2013-Twitter-Why is Pedophile #BrettKimberlin Mad At Us
August 4, 2013-Twitter-Brett Kimberlin will have his trial. But I don't
have to wait to call him a pedo.
August 3, 2013-Twitter-Yes, #Brett Kimberlin is a pedo regardless of
charges
July 31, 2013-Twitter-#Brett Kimberlin Violates A Domestic Violence
Protective Order
July 30, 2013-Twitter-next hearing date will be in circuit court, where
PedoBrett tends to lose.
July 29, 2013-Twitter-Brett Kimberlin is a Pedophile
July 29, 2013-Twitter-What does #Brett Kimberlin, who tried to have sex
with a 12-year old, deserve?
July 29, 2013-Twitter-I am not calling him allegedly anything. He is a
pedophile.
July 29, 2013-Twitter-So I am going to say something definitive. #Brett
Kimberlin is a pedophile.
August 15, 2013-She not only needs help with the legal expense involved
in getting herself and her daughters free from Brett, she needs help
resettling herself
August 14, 2013- The Kimberbots are the fanboys, cheerleaders, and
enablers who tweet and blog their admiration and support for The Dread
Pedo Kimberlin
August 13, 2013- You can donate to help Tetyana get herself and her
children away from her abusive husband. Click on the Tetyana s Fund link
to learn more.
August 13, 2013- Tetyana Kimberlin is trying to get herself free frotn her
abusive husband. She is trying to get her children away frotn her pedophile
husband.
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August 12, 2013- During that time, he has used mentally abusive tactics to
keep her and her children bound to him
August 1, 2013-Brett Kimberlin, Dread Pedo Kimberlin
July 30, 2013- However, I do believe that Brett Kimberlin most likely is a
pedophile.
July 29-August 15, 2013-Twitter-Team Kimberlin Post of the Day
(directing readers to his Hogewash posts above)
July 29, 2013-Twitter-Brett Kimberlin:Pedophile?
Robert Stacy McCain-The Other McCain
July
2013-If Brett Kimberlin hates
he will do anything within his
power to harm you - even though he derives no benefit from these
destructive acts other than the sadistic vengeful pleasure of inflicting harm.
July 18, 2013- Evil is what Brett Kimberlin is. Evil is what Brett Kimberlin
does. Everyone who assists Brett Kimberlin is an accomplice to evil, and
silence about Brett Kimberlin's evil is a fonn of assistance.
Ali Akbar-Twitter-@ali
In addition to the above, Appellee's Walker and Roge filed more than a dozen
malicious lawsuits, peace orders, and criminal charges against Appellant, all
which were dismissed or nolle prossed. These meritless legal actions were filed
by these Appellees as part of their reign of terror and as a strategy to use them for
an improper purpose - Le., to file the pleadings with scandalous and defamatory
allegations, and then publish articles and tweets breathlessly repeating the false
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allegations as if they were gospel while raising thousands of dollars from gullible
readers.!!
Appellees' Strategy To Deprive Appellant Of A Defense To These Charges
In 1972, when Appellant was a teenager, he was called before a Federal Grand
Jury investigating matters at his high school. He was not represented by counsel
l/Here is a list of the meritless legal actions filed by these Appellees and their
results as listed in the Complaint.
Defendant Walker has filed the following lawsuits, Peace Orders and
criminal charges against Plaintiff since January 2012:
January 31, 2012, Montgomery County District Court, One Count Perjury
(nolle prossed February 10, 2012)
April 17, 2012, Montgomery County District Court,' Five Counts Perjury
(nolle prossed April 30, 2012)
January 30, 2012, Prince William Virginia Circuit Court, Multiple Counts
Alleging Criminal and Civil Torts (dismissed by judge December 4, 2012)
June 22, 2012, United States District Court Maryland, Greenbelt, Multiple
Civil Torts, (dismissed by judge November 26, 2012)
March 13,2013, Montgomery County District Court, Peace Order (denied
by judge on March 13,2013)
December 2011, Montgomery County Circuit Court, numerous filings for
Seth Allen alleging fraud and perjury (denied January 9, 2012)
July 30, 2013, Montgomery County District Court, prepared false pleading
in Family Court matter alleging sex offense (denied August 12, 2013)
July 29, 2013, Montgomery County District Court, prepared criminal
charge for third degree sexual assault (nolle
August 23, 2013)
Defendant Hoge has filed the following Peace Orders and criminal charges
against Plaintiff since February 18, 2013:
February 18, 2013, Carroll County District Court, Two Counts Harassment
(nolle prossed April 17, 2013)
March 22, 2013, Carroll County District Court, One Count Harassment
(nolleprossed April 17, 2013)
March 22, 2013, Carroll County District Court, Peace Order (denied March
29,2013)
April 3, 2013, Carroll County Circuit Court, Peace Order Appeal (denied
July 2, 1013)
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and was later indicted for perjury. After a trial, he was found guilty and served 18
days in the county jail as part of a probationary sentence. The judge intended that
Appellant be sentenced under the federal Youth Corrections Act, 18 U.S.C. 5005-
26 (repealed), which provided for expungement of the records at the age of 22,
and he did not make any finding that Appellant would not benefit from the YCA
which is required if the judge intends to sentence an offender as an adult. See 18
U.S.C. 5010(d).
expungement, the judge was unable to do so because the Seventh Circuit Court of
Appeals did not allow retroactive application of an intervening Supreme Court
case, Dorszynski v. United States, 418 U.S. 424 (1974).
Appellees knew about Appellant's perjury conviction and decided that they
could file legal actions against Appellant with impunity because of an arcane
Maryland rule that prohibits persons convicted of perjury from testifying in any
matter, whether as a victim, defendant, plaintiff or witness. That Rule, Court's
Article 9-104. states simply and categorically the following: "A person convicted
of perjury may not testify."
In the instant case dluing pretrial proceedings, Appellees, at every hearing
,md every stage of the case, moved the different judges to prohibit Appellant
from testifying under Rule 9-104. Several judges refused to allow Appellant to
testify at various hearings, while others allowed him to do so, but Appellant
never knew what was going to happen at any hearing because of these
the Appellees and asked to answer them under oath, he filed a motion for
protective order, citing inconsistent 9-104 rulings. Instead, the judge imposed
sanctions against Appellant for not answering them lmder oath. Id.
Appellant then filed a pre-trial motion to prohibit Appellees from
seeking to disqualify Appellant as a witness based on the 40+plus year old
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teenage perjury conviction, and Appellant asked that the Court find Rule 9104 unconstitutional as a denial of due process. equal protection and victims
rights. On August 7. 2014, five days before the trial was to begin, Judge
Richard Jordan held a hearing on the motion and stated that it was his opinion
that the Rule 9-104 is unconstitutional and that it would be found so if it were
ever challenged.
false light claims were Appellant's "money counts" but over Appellant's
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The Trial
The trial was scheduled for two days, August 11 and 12, 2014. Day one
was reserved for jury selection. On day two, Appellant told the jury that he
would show that Appellees engaged in wholesale defamation of him over a
period of years which included calling him a rapist, pedophile, and tTIurderer,
and that they falsely said that he caused Mr. Walker's termination and
concocted the assault by Mr. Walker in order to rally their readers against
Appellant and create opprobrium.
The Testimony of Appellant's Daughter
Appellant stated that he would call his 15 year old daughter as his first
witness to describe to the jury the hann suffered by Appellant, to discuss
Appellant's reputation before and after the defmnation, to testify about
damages to Appellant and his family, and to refute the Appellees' statements
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of defamation and false light. Here are some of the statements and rulings by
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calling his daughter to testify, 46, and the trial judge spent a great deal of time
telling Appellant that she could not testify about the subject matters at trial.
Appellant proffered his daughter as his first witness, but the judge refused to
Finally, he did let her testify after the
Appellees had testified, but then greatly limited her testimony on the elements
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When Appellant's daughter finally took the stand after the four Appellees
had testified, the Court refused to allow her to testify regarding hann to
Appellant, his reputation, damages, or emotional distress.
233 et seq.
Moreover, when she testified that Appellant never showed any evidence of
pedophilia, 238, the Cotut cut off the line of inquiry:
Q. Have I ever shown any sexual interest in any of your friends at any
age?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
Q. How about with your sister THE COURT: Sustained..... 239
THE COURT: Sustained. Sir, you're going way off base.
MR. KIMBERLIN: Your Honor, I need to let this jury understand
that we've suffered.
MR. OSTRONIC: Objection.....
Q. Do you want this stuff to stop?
WITNESS: DefInitely, yes.
Q. Do you think that it's hurting you and your career [as a music
artist]?
MR. OSTRONIC: Objection.
THE COURT: Sustained. 240
Q. Is it affecting THE COURT: Sustained. Id.
The Testimony Of The Four Appellees
Appellant called each of the Appellees to testify and introduced dozens of
articles and Twitter tweets over a period of months that they admitted
publishing online which showed that they defamed him and portrayed him in a
false light.
Aaron Walker
Q. Did you later tell people that you were tenninated [from employement]
because of me?
A. Yes. 76 ....
Q. And in the past three years how many blog posts, roughly, ... how many
blog posts have you made about me? ...
A. Maybe 100, rill not sure. 78
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(sic) 89
A. Yes....
Q. Have you ever published a graphic of a Pedo bear with my face
superimposed on it?
A. Yes.
Q. Okay, how many times do you think, just roughly, you've done this?
A. I don't know, maybe more than a dozen. (At that point Appellant entered
a packet of tweets frotn Appellant Walker showing the Pedo bear with
Appellant's face superimposed on it). 89 ..,.
Q. SO you published depictions of me in the Pedo bear graphic on multiple
occaisions. am I correct?
A. Well since multiple means more than two, easily. 92....
Q. SO it's safe to say you tweeted the Pedo bear with my picture in (sic) it
and posted it on your website on numerous occasions, is that fair to say?
A. Since it would be more than tlnee, sure.....
Q. Can you read the title to that post?
A. Vile Brett Kimberlin's Manipulation of his Daughter. 116 ...
Q. But have you ever posted on your blog that people should not flmd my
non-profit? 129 ...
A. And so I have sought justice against you, that is correct. 130
William Hoge
Q.... How many times do you think you've blogged about me and
tweeted, blogged, anything?
A. Well, I did a word search for your name on my blog a few days ago and
it came up 783 times.... Tweets probably twice that .... 134
Q.... You've called me a pedophile on your blog. haven't you?
A. rve expressed the opinion that I believe you might be.
Q. And you've used the Pedo bear meme with Iny picture interspersed with
it?
A. I found it on the internet and as a bit of news reproduced [it]. 137
Q.... rin asking you right now, can you read that under that picture [from
your blog]?
A. It says dread Pedo Kimberlin.... 137
tweets [about Appellant]?
Q. You said you might have done how
A. On the order of perhaps two or three per post so that would on the order
of 1500, perhaps 3.000.
Q. Have you ever called me a pedophile on your blog or on Twitter?
referred to you as one. yes. 139
A. I
Q. Have you ever filed charges against me? 144
A. Yes. 145
Q. SO you accused me of crimes that I've never been convicted of, <un I
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correct? 147
A. That's true.
Q. Okay, you filed charges, let tne ask you this. When you file charges
against me, the caption of that charge reads State of Maryland versus Brett
Kimberlin.
A. Yes.
Q. And then you, have you ever taken that charge, that title and gone on your
blog or on Twitter and said sOlnething to the effect State of Maryland charges
Brett Khnberlin with X?
A. I have reported the fact that you have been charged with things by me or
by other people. 148.
Q. SO you create the document, you file the charge and then you report it as
gospel.
Ali Akbar
Q. Have you ever called me a pedophile?
A. I believe you're a pedophile.
Q. SO you admit that you've called me that?
A.... I've called you a pedophile and I believe you're a pedophile.
Q. Okay, so, but you have a Twitter account, right?
A. I have a very popular Twitter account. 153
Q. Did you ever write a Twitter post ever on July 27, 2013 that said Brett
Kimberlin is a pedophile and his hired cyber thugs hate when we tweet about it,
did you ever write that?
A. I don't recall that tweet in particular but I believe that statement to be
true. 158
Q. SO we've uncovered Brett Kimberlin's big secret, he's a pedophile with
other pedophiles around his children.
A. You have a convicted child pornographer filming your l4-year old
daughter's music videos.
Q. Did you on July 29, 2013 that Neal Rauhauser supports pedophile Brett
Kimberlin?
A. Objection, that's a non-party. 159
Q. Excuse me on July 31st, 2013 did you say Brett Kimberlin is a pedophile?
A. I don't recall what I wrote on that date....
Robert Stacy McCain
Q. Did you ever publish a blog post..... First of all can you read the title?
A. The title is How to Get a Million Hits On Your Blog In Less Than A
Year.
Q. Point number 4A. .... Make some enemies. [quoting from post] We'll have none of your
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bipartisan civility around here you sissy weaklings. This here is the hmer tubes
and we're as nasty as we want to be.... 164 [continuing to read from post] Easy
as it would have been to ignore Klein I him upon the delightfully fun idea of
laying into him Arkansas knife fight mode. If you're going to cut a man,
eviscerate him.... 165-6 [continuing to read] Sex sells.... You'd be surprised at
the key word combinations that bring traffic to a political blogger who
understands this.
Q. SO in other words make enemies, and raise Inoney and use sex to do that.
A. Everybody loves a pretty girlQ. Now have you used those things in your blogging about Ine, I'm your
enemy, right?
A. Do you hate me with a passion, sirQ. Did you tweet that my daughter can't sing a lick? 170
MR. OSTRONIC: Objection....
THE COURT: So I'll sustain the objection as to any questions having to do
with someone who is not a party in this case. 171
Q. How many times have you written posts about me?
A.... Well let's see from March 17 th to July 5, 2012, I'm pretty sure I posted
daily, so that would have been 42.
Q. SO if I were to show you 782 tweets that you've hadA. I would tell you that only six of those in your hand that you're showing
me were tweeted before you filed this lawsuit. 172
Q. Now in your postings and tweets have you ever called Ine evil, the
epitome of evil? 174
A. I don't know about the epitome of evil but I've used the phrase evil to
apply to you several times. 175
During a break in Appellee McCain' s testimony, the judge said the
following:
THE COURT: See, here's what probably surprised you. These men didn't
come in here and say they didn't say these things. They came in here and said
yeah I said that. You don' t have to prove that they said it. They testified that
they said it. 192
.
Appellee McCain then testified that his well-read blog has linked to stories
by Appellees Roge, Walker and Akbar about Appellant. 210 He again said that
he called Appellant "evil." 195. He said that the Washington Post and one of its
reporters, Monica Hess, were "a disgrace to joulnalism" because they published
"evil lies" about Appellant. 196-7. He said that he did not need to use the actual
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I didn" t hear any malicious statements Inade byBut what evidence is there that has put in that any of these things .... 245
What evidence is there that [calling Appellant a pedophile is] false?
Why did you say it was false? I understand you"re saying you are not a
pedophile. But you can argue that. Who has testified to that?
Why is it defamation per se? 249
Where is the malice?
[Pedophila] is not a crime. 250
Okay, do we have that the statement was false? ... And who testified to
that?? 251
What evidence is there that the statement was false? 252-3
Any evidence [that the] statelnent subject[ed you] to contempt?
"
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Well you could testify, you didn't. It's your choice. Nobody's
criticizing you for it. 255
When you say that it's [automatic] could you have just come in here and
say they called me a pedophile, plaintiff rests.
So what do we tell the jtrry about damages.
Does it matter in your argument at all that there's no such crime as
pedophilia. . .. But pedophilia is not a crime. You keep using the word
crime. They have not accused you of a crime. 257
What evidence is there that the portrayal of you with respect to [false
light] was false, what evidence is there?
Who testified that it was false? ... Yes, the false light court I'm talking
about. There is no per se false light. 259
But at a trial wouldn't somebody, somebody, some evidence somewhere
have to say that wasn't true? ... Otherwise if I buy into your argument all
a person would have to do is go into court and say things and then just
rest. Give it to the jury. 260
They're (sic) plenty of people that were portrayed as good fathers that
were pedophiles. 261
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He then cited Pettitt v. Erie Insurance Exchange, 117 Md. App. 212
(1997), for the proposition that being a pedophile and pedophilia are "tnental
disorder[s]:" "And clearly pedophilia from the medical profession point of view
,md from the psychological professions point of view it is a mental condition. It
is not a crime ... there is no such crime as pedophilia" 269-70.
The court concluded: "Assume arguendo that pedophilia was a crime and it
is not, .... Assume arguendo that it was, there was absolutely no evidence in this
case of exactly to what the defendant (sic) is alleged to have done. And so I
think that the case falls short of rising to the level that it should go to the jury.
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And for those reasons the Court issues a judgnlent in favor of the defendants.....
271.
Appellant filed his third Notice of Appeal, and this Cowt consolidated all of
them, and ordered Appellant's brief to be filed by July 31, 2015.
ARGUMENT
I
rule at every pretrial hearing where Appellant was required to testify and even to
statements made under oath in documents filed with the Circuit Court. Several
judges ruled that Appellant could not testify. When Appellant filed a pretrial
motion to find .Rule 9-104 unconstitutional so he could prepare himself to testify
at trial, he was told that the rule is most likely unconstitutional and would be
found so if challenged, but that the trial judge would have to decide whether
Appellant could testify. And then on the day of trial, minutes before evidence
was to begin, the trial court refused to find it unconstitutional but did rule that
Appellant could testify. By that tilne. Appellant had no time to prepare himself
to testify, thereby prejudicing hitn, and depriving him of due process and
meaningful access to the court.
Appellant has been tillable to find any other lule in any other state in the
country that deprives an entire class of people the right to testify. Rule 9-104
comes from common law in Maryland and very little case law is on the books
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even discussing it. See Myers v. State, 496 A. 2d 312 (Md. 1985) (person not
convicted for perjury when sentenced to probation before judgment and
therefore Section 9-104 does not apply to witnesses testimony).
In 2012, both the Maryland House (House Bill 926) and Senate (Senate Bill
673) introduced bills to repeal the rule. The Carroll COlmty State's Attorneys
office requested that the law be amended to allow the testitnony of victims and
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witnesses.
Senator Joseph Getty sponsored the bill and the Carroll County
House of Delegates cross-filed the House bill. In the words of the state:
"'There are many situations whereby without the victim's testimony,
there would be no case," the state wrote. "Think about cases of domestic
violence, which ahnost always take place behind closed doors and
generally only have two witnesses present - the abuser and the victim.
To disallow the victim to testify would basically grant the abuser carte
balance to continue to abuse the victim, no fear of any legal
consequences. Without allowing the victim... to testify, it would be
impossible to convict the rapist, as there would be no testimony that the
sex was non-consensual." {See Senate Testimony-Appendix A]
The Senate voted lmanimously for repeal, and the House Judiciary Committee
voted to repeal it. Unfortunately, the full House did not vote and the legislation
died at the end of the session.
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Statutes
The Supreme Court in Rock v. Arkansas, 483 US 44 (1987) held that a state
law or rule or court decision cannot deprive a criminal defendant of his right to
testify. In Rock, the defendant was not allowed to testify because he had been
hypnotized and Arkansas courts had ruled that persons who had been hypnotized
cannot testify. The Supreme Court, however, disagreed:
The right to testify on one's own behalf at a criminal trial has sources in
several provisions of the Constitution. It is one of the rights that "are
of
law
in
a
fair
adversary
essential
to
due
process
process." Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). The
necessary ingredients of the Fourteenth Amendment's guarantee that no one
shall be deprived of liberty without due process of law includes a right to be
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any injury done to him in his person or property, ought to have remedy by the
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course of the Law of the land, and ought to have justice and right, freely without
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sale, fully without any denial, and speedily without delay, according to the Law of
the land."
Finally, Rule 9-104 conflicts with an entire body of statutes, rules and decisions
that form the civil and family law code in the state of Maryland. For example,
victims have a right to file PeacelProtective Orders and criminal charges that are
made under oath and testified to before a Commissioner or Judge. Md. Code 31503(b)(1) (Peace Order application must be made under oath).
Those victims
then Inust testify in court or else the Peace/Protective Order and criminal charge
will be denied. In civil cases, parties have a right to call witnesses and to testify
themselves. Md. Rule 5-601(Except as otherwise provided by law, every person is
cOlnpetent to be a witness.) And Rule 5-609(b) sets a thne of 15 years for
impeaching a witness with a conviction.
he could testify. It was not until literally minutes before testimony was to begin
could prepare for trial but the courts refused to Inake those rulings or rule whether
that the trial judge said Appellant could testify, but that delay deprived Appellant
of meaningful access to the courts, due process and equal protection. Trials are
not games of gotcha, whim or arbitrariness. Appellant had a constitutional right to
testify and prosecute his case. Instead, he was left swinging in the wind without
knowing whether he would be allowed to testify. It was unfair and prejudicial to
leave Appellant without a ruling on whether he could testify until the trial started.
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II
THE TRIAL JUDGE ERRED ON THE LAW AND THE FACTS WHEN
RULING THAT APPELLANT DID NOT PROVE DEFAMATION AND
FALSE LIGHT
The trial judge erred in multiple ways regarding the defamation and false
light claims. First, he said that Appellant did not show what the Appellees did
wrong. Second, he said that repeatedly publishing that Appellant is a pedophile
and engaged in pedophilia was not defamation or per se defamation. Third, he
said that Appellant did not prove that Appellees' statements were false.
Fourth,
he said that Appellant had not presented "one scintilla" of evidence showing that
the Appellees portrayed Appellant in a false light.
The Wrongs By Appellees
The Maryland Court of Appeals has defined a defamatory statement as one
which tends to expose a person to public scorn, hatred, contempt or ridicule,
thereby discouraging others in the community from having a good opinion of, or
from associating or dealing with, that person Batson v. Shiflett, 325 Md. 684, 72223 (1992).
accusations of pedophilia, being a pedophile and sex abuser in order to subject him
to public scorn, hatred, contempt and ridicule. They wronged him by portraying
him in false light through these accusations and piling on with statements that he
was "evil" and the "epitome of evi1." They acted with malice by repeating these
false accusations hundreds of times over a period of years and on various social
media platforms, by trying to have Appellant arrested based on the false
statements, and by refusing to correct and remove the false statements. The
Appellees acted with knowledge of the falsity of their statements and with reckless
disregard for the truth.
The False Statements Constituted Per Se Defamation
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The trial court, at the conclusion of the evidence at trial, stated that pedophilia
is not a crime and so calling Appellant a pedophile in scores of tweets, blog posts
and public statements did not constitute per se defamation.
"Assume arguendo that pedophilia was a crime and it is not, even though as
I said the plaintiff kept referring to it as a crime, it's not a crime. Assume
arguendo that it was, there was absolutely no evidence in this case of
exactly to what the defendant (sic) is alleged to have done. And so I think
the case falls short of rising to the level that it should go to the jury. And for
those reasons the Court issues a judgment in favor of the defendants." 271
The Court erred as a matter of law in its ruling for the directed verdict on the
defamation claim. Publishing statements calling Appellant a pedophile, rapist and
abuser, saying he engaged in pedophilia, forged hospital records and lied in court
pleadings is considered per se defamation according to well-established state and
federal case law. In a case very similar to this one, Longebehn v. Schoenrock, 727
NW 2d 153 (Minn, CA, 2007), the trial judge ruled that calling someone "Pat the
Pedophile" did not constitute per se defamation. The court of appeals disagreed:
Here, the jury found that respondent called appellant "Pat the Pedophile,"
but that he did not accuse appellant of being a pedophile. Because there
was no accusation, the district court concluded that the statement was not
defamatory per see But the test is not whether the speaker intended to make
an accusation, but whether a reasonable person under similar circumstances
would understand the statement as making an accusation or imputing
criminal or serious sexual misconduct to another. See Anderson, 262
N.W.2d at 372 ("[T]he test [is] whether a reasonable person would believe
the statement to be defamatory.").
With this rule in mind, we hold that in almost every circumstance a
reasonable listener would believe that calling a person a pedophile imputes
serious sexual misconduct or criminal activity to that person. It is,
therefore, defamatory per see This is especially true where, as in this case,
the listener had no prior knowledge that the offensive name was a nickname
that the community commonly used to signify its displeasure with appellant
a local police officer dating a much younger woman. Furthermore,
respondent has cited no case, and our research has revealed none, holding
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Under Maryland law, statements are defamatory per se when the statements
possess innately injurious characteristics. Bouie v. Rugged Wearhouse, Inc.,
2007 WL 430752 (D. Md. 2007); Hearst Corp. v. Hughes, 297 Md. 112, 125,
(1983). Accusing an individual of committing a crime is an example of a
statement that is defamatory per see See, e.g., Carter v. Ara111ark Sports and
Entertainment Services, Inc., 153 Md. App. 210, 238 (2003)(allegation that a
V.
(Md. 1962) (if statement made in ordinary lay language that would impute a crime
or guilt, sufficient to prove libel); Brown v. Farkas, 511 NE 2d 1143 (Ill. 1986)
(call to DSS that employee bragged about sex with daughter is per se defamation);
Conner v. Scruggs, 821 So 2d 542 (LA App. 2002); Smith v. Danielczyk, 928 A2d
V.
V.
In fact, the DC Superior Court recently found defamation from the statement that
Michael Mann is the "Jerry Sandusky of climate change." The Court found that to
"place Plaintiff's name in the same sentence with Sandusky (a convicted
pedophile) is clearly outrageous." Mann v. National Review, 2012 CA 008263 B
(Aug. 30, 2013).
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Black's Law Dictionary 5th Ed, West 1970, page 376 states the following with
regard to defamation per se: "In respect of words, those which by themselves, and
as such, without reference to extrinsic proof, injure the reputation of the person to
whom they are applied." Defamation per se means "defamation in itself." Again,
according to Black's at p 1245: "such words as are deemed slanderous without
proof of special damages. Generally an utterance is deemed 'slanderous per se'
when publication (a) charges the commission of a crime, (b) imputes some
offensive or loathsome disease which would tend to deprive a person of society,
(c) charges a woman who is not chaste, or (d) tends to injure a party in his trade,
business, office or occupation...."
Calling Appellant a pedophile connotes criminal activity and illegal sexual
activity. Black's defmes pedophilia as: "1. An adult's sexual disorder consisting
in the desire for sexual gratification by molesting children, esp, prepubescent
children. 2. An adult's act of child molestation .... "(emphasis added).
By calling Appellant a pedophile, Appellees were imputing an act of serious
and illegal sexual misconduct (rape and molestation) to Appellant. "A statement
is defamatory per se if it imputes serious sexual misconduct to the subject of the
statement" Baufiled v. Safelite Glass Corp, 831 F. Supp. 713, 717 (D. Minn. 1987)
See also, Restatement (Second) of Torts, section 574. Regardless of the context in
which the word is used, "pedophile" will not have an innocent meaning. By
definition, the use of the word accuses Appellant of engaging in pedophilia, child
rape, a heinous criminal offense. See Miles v. Ramsey, 31 F. Supp. 2d 869 (D. Co.
1998)(accusing man of being pedophile defamatory); Bochan v. La Fontaine, 68
F. Supp. 2d 692 (D. ED Va. 1999)(posting on Internet chat rooms that plaintiff
was pedophile, constitutes prima facie defamation).
In the instant case, the Appellees' use of the words pedophile and pedophilia
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though no such sex crime ever occurred. Appellant presented dozens of documents
at trial showing the Appellees' use of these defamatory words, (which.imputed
criminal activity) and how they intended those words to be interpreted. Appellees
admitted that they said these things in order to injure Appellant. The Appellees
even testified that they meant that Appellant was a criminal pedophile who
committed statutory rape and should be in prison. For example, Mr. Walker
admitted that he published at least 30 tweets on Twitter calling Appellant a
pedophile and published graphics with Appellant's face photo-shopped on to a
Pedo Bear..
"Q How many tweets do you think you published said I'm a pedophile?
A Maybe 30." (Tr. 81).
Q. Have you ever published a graphic of a Pedo Bear with my
face superimposed on it?
A. Yes. 89
Appellee Akbar even stated this many times in his closing argument: ''''I still
believe he's a pedophile." Tr. 263. "Brett Kimberlin is a pedophile." Tr. 265. As
this Court noted in Samuels, defamatory communications can be based on
statements of fact or opinion. 763 A.2d at 242. Moreover, a defamatory utterance
is not only determined by a dictionary defmition of the word but by how a
reasonable person would understand the use of the word. In the case of the word
pedophile, any reasonable person would understand that means sex with
prepubescent children.
Appellant had not presented any evidence of "what the Defendants had done."
Finally, Appellant did address the issue of falsity at trial. First, he attempted to
introduce emails that Appellant's wife had sent to Appellees Walker and Roge
where she stated that the allegations were false. However, the court sustained
objections to those emails. Second, Appellant's daughter did testify that the
allegations of pedophilia were false despite the trial court's repeatedly ruling that
she could not testify that Appellant never showed any untoward inclinations
toward her, her friends or her sister. She also testified that Appellant was a good
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father who never raised a hand to her or her mother. Third, Appellant showed
through the testimony of various Appellees that the false allegations of sex abuse
were nolle prossed, investigated and found malicious by the Department of Child
Services. Clearly, Appellant demonstrated falsity and showed that Appellees'
defamatory statements exposed him to public scorn, hatred, contempt, or ridicule
to a third persons who reasonably recognized the statements as being defamatory.
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None of these
statements was true yet they were made intentionally in order to place Plaintiff in a
false light and invade his privacy. They repeatedly portrayed Appellant as the
"epitome of evil" 174 who caused Appellee Walker's job termination, "lied" about
being assaulted by Appellee Walker and "forged" 71 hospital and police reports
relating to that assault. 72 These statements would be highly offensive to a
reasonable person because they involve abhorrent, reprehensible and criminal
behavior.
The Defendants also testified that they appropriated Plaintiff's likeness by
placing his photograph on a depiction of a "Pedophile Bear" and publishing that
graphic scores of times on various blogs and Twitter accounts. For example,
Defendant Walker testified:
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these Internet bloggers never once contacted Appellant to ask him about their
accusations.
posted Appellant's photo on a Pedo Bear graphic so they could be the accuser, the
judge, the jury and the executioner of Appellant's reputation. In short, the trial
judge clearly erred in finding that Appellant did not prove false light.
III
THE TRIAL COURT INVADED THE PROVINCE OF THE JURY AND
FAILED TO FOLLOW MARYLAND LAW REGARDING DIRECTED
VERDICTS
In ruling upon a motion for a directed verdict, the court must resolve all
evidentiary conflicts and inferences that may naturally and legitimately be
deduced therefrom in favor of the plaintiffs right to recover. Plitt v.
Greenberg, 242 Md. 359 (1966); Langville v. Glen Burnie Coach Lines, Inc., 233
Md. 181 (1963); Smith v. Bernfeld, 226 Md. 400 (1961). The Court of Appeals in
the case of Plitt, supra, stated:
This Court has always maintained that if there be any legally relevant and
competent evidence, however slight, from which a rational mind could infer
a fact in issue, then a trial court has invaded the province of the jury. by
declaring a directed verdict. Geschwendt v. Yoe, 174 Md. 374, 381, 198 A.
720651 *651 (1938); Hanrahan v. Baltimore, 114 Md. 517, 535, 80 A. 312
(1911) and prior Maryland cases cited therein. Judge Homey, for the Court,
in Smack v. Jackson, 238 Md. 35, 37, 207 A.2d 511 (1965) stated the rule
succinctly when he said: "[A] party is not entitled to a directed verdict in
his favor unless the facts and circumstances are such as to permit of onIy
one inference with regard to the issue presented." [242 Md. at 368].
In the instant case, Plaintiff presented overwhelming evidence to show that the
Appellees defamed him by calling him a pedophile, rapist, and abuser. That
evidence came in the form of blog posts, tweets and testimony by the Appellees.
This was legally relevant and competent evidence that a rational juror could infer a
fact in issue -- that the Appellees defamed Appellant.
Moreover, Appellant presented strong and uncontroverted evidence that the
Appellees portrayed him in a false light as set forth in Argument II above. He
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presented relevant evidence that the Appellants invaded his privacy by publishing
private infonnation and maliciously twisting a court hearitig involving a private
family matter into published accusations of spousal abuse, pedophilia, and rape.
This evidence included the Appellees' own testimony and their published
statements.
The trial court did not resolve a single issue in favor of Appellant, as required
by Maryland law. Instead, the trial court, over Appellant's strenuous objection,
invaded the province of the jury by resolving the case, evidence and inferences in
favor of the Appellees instead of Appellant, in violation of well-established
precedent from this Court and the Maryland Court of Appeals. This constituted
reversible error.
IV
TIlE TRIAL COURT PREJUDICED APPELLANT BY DEPRIVING mM
OF TIlE RIGHT TO PUT ON EVIDENCE TO PROSECUTE IDS CASE
The trial judge in deprived Appellant of a fair trial by limiting important
evidence that would have shown the falsity of Appellees statements and other
elements of the two claims. Specifically, he refused to allow Appellant's daughter
to refute the allegations of pedophilia by testifying that Appellant never exhibited
any untoward interest in her, her friends or her sister. 239 This testimony would
have created a factual issue for the jury to decide.
The judge also refused to allow her to testify regarding Appellant's reputation
and what happened to that reputation after Appellees defamed him with statements
of pedophilia. She would have testified that prior to the defamatory statements,
neighbors and parents of her friends were friendly and would let their children
visit her home and have sleepovers with her. But after the defamatory statements,
these people did not want to have anything to do with her or Appellant, and would
not let their children visit or even talk with them. This is exactly the type of
testimony that is required in defamation cases to show reputational hann. See
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V
JUDGE MCGANN PRETRIAL IMPROPERLY DISMISSED THREE
CLAIMS ON APPELLEES' MOTION TO DISMISS
On July 1, 2015, Judge McGann held a hearing on Appellees' Motion to
Dismiss and ruled the claims involving abuse of process, conspiracy to abuse
process, and intentional infliction of emotional distress. This constituted error.
As noted above and in the Complaint, Appellees filed dozens of frivolous
and malicious criminal charges, peace orders and civil cases against Appellant, all
which were dismissed. They then used those legal pleadings improperly -- as a
basis for their defamatory publications, and this inflicted "special injury" on
Appellant. As noted above, the Appellees admitted that they wanted to cause
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CONCLUSION
For the foregoing reasons, Appellant moves this Court to (1) reverse the trial
court's decision directing a verdict in favor of Appellees; (2) fmd that Rule 9-104
is unconstitutional and Appellant was prejudiced by the lower court's failure to
find it unconstitutional prior to trial; (3) find that the trial court failed to follow
precedent when directing a verdict without resolving all matters in favor of
Appellant; (4) fmd that the trial court committed error by limiting evidence and
testimony favorable to Appellant; and (5) find that the lower court erred in
dismissing the abuse of process, conspiracy to abuse process and intentional
infliction of emotional distress claims.
Respectfully submitted,
Brett Kimberlin
Brett Kimberlin
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APPENDIX A
Testimony in Maryland Senate in Support of
of Rule 9-104
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JOSEPH M. GElTY
rth Ugis/ntil Distria
Baltimore and Carroll C'..ountics
Joseph.Geny@senate.state.md.us
Reapportionment and
Redistricting Committee
Joint
Ethics
lnmsparency and Open Government
As amended, Senate Bill 673 entirely repeals the prohibition on convicted perjurers
testifying in court. This is a significant revision to the original bill (which was cross-filed with
House Bill 926) which only repealed the prohibition on convicted perjurers testifying in court
when the witness was the victim. House Bill 926 was given an unfavorable report by this
committee - but I proposed to the committee that the significant amendments in the Senate make
this a new bill (not a reconsideration of the prior cross-file).
The current law appears to be derived from English common law that created a
permanent disability on a convicted perjurer from testifying at any future court proceeding. It
appears to have been codified in the early 1900s. It currently resides as statute in the Courts and
Judicial Proceedings Article at 9-104 with the blanket language: "A person convicted of
perjury may not testify."
This issue was brought to the attention of the Carroll County Senate Delegation by the
Carroll County State's Attorney's Office. Their concern stemmed from their inability to pursue
certain criminal cases. There are numerous situations in which the testimony ofthe victim is
indispensible to the proceeding, such as in a domestic violence or rape case. Without the .
testimony by the victim, there is a very distinct possibility that the abuser could continue to harm
the victim without fear of repercussion.
At the bill hearing, the Public Defender's Office opposed the bill because it carved out an
isolated repeal for a victim. They stated that it would be unfair to allow victim witness to testify
when a witness for the defense would still be subject to the disability ofa convicted perjurer to
testify.
The Senate Judicial Proceedings Committee considered this: "What is the modem-day
public policy that supports a blanket prohibition against testimony by a witness with a prior
conviction for perjury?" The Committee was concerned that this applies not only to criminal
proceedings but also to civil actions (are attorneys aware ofthis and do they use it in domestic
relations or personal injury cases?). The Committee also agreed with the Office of Public
Defender that a partial repeal of the prohibition would be unjust.
There are other similar scenarios under the law where a conviction can occur for a false
statement (false statement to a police officer) that does not result in a blanket prohibition against
future testimony in a court proceeding.
For these reasons, the Senate Judicial Proceedings Committee decided that the current
law is an remnant of English common law that does not provide good public policy today and
that testimony from a convicted perjurer should be allowed but subject to current rules for
attacking the credibility of a witness.
Currently, Maryland Rule 5-609 governs impeachment ofa witness' testimony by
attacking the credibility of the witness. Evidence that the witness has been convicted of a crime
must be admitted if elicited from the witness or established by public record during public record
examination of the witness, but only if(l) the crime was an infamous crime or other crime
relevant to the witness's credibility; and (2) the court determines that the probative value of
admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting
party.
In summary, Senate Bill 673 was significantly amended in the Senate Judicial
Proceedings committee to create a total repeal on the prohibition in current law at Courts and
Judicial Proceedings Art. 9-104. Under the amended bill, a convicted perjurer would be
allowed to testify in all court proceedings subject to impeachment of the testimony under court
rules.
Therefore I request a favorable report on Senate Bill 673 - Courts and Judicial
Proceedings - Prohibition Against Testimony by Convicted Perjurer - Repeal.
SUSAN'Vv. KIums
Ltgis14tivt District 9B
Carroll County
Fax 410-841-3349
Susan.Krebs@house.state.mclus
Occupations Subcommittee
Public Health at Long Term
Care Subcommittee
House Bill 926 would establish an exception to the prohibition on convicted perjurers
testifying in court proceedings by authorizing a convicted peIjurer to testify if the testimony
relates to events in which the perjurer is an alleged victim.
WHY IS THIS BILL NECESSARY?
Imm
The Office ofearroll County State's Attorney Jerry Barnes requested this legislation to
ensure that all victims of crime are able to receive justice. Currently, the state ofMaryland
allows a convicted perjurer the ability to testify in their own defense at trial, but the state does
not allow them to testify when they are a victim.
There are many situations in which a victim's testimony is necessary, especially in
incidents of domestic violence and rape, and preventing a convicted perjurer from testifying
would limit or prevent prosecutors' ability to make a case. We need to ensure that our law
enforcement officers and our courts have all the tools necessary to protect the public regardless
ofa victim's background.
Please vote yes to House Bill 926.
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BY:
AMENDMENT NO.1
In the sponsor line, strike "Senator Getty" and substitute "Senators Getty,
Forehand. and Gladden"; in line 2, after "Proceedings ...!' insert "Prohibition Against";
in the same line, after "Perjurer" insert ".. Repeal"; in line 3, strike "establishing an
exception to" and substitute "repealing"; strike beginning with "for" in line 4 down
through "victim" in line 5; and in line 7, strike "and reenacting, with amendments,".
AMENDMENT NO.2
Strike in their entirety lines 15 through 19, inclusive.
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(ouose Ii 0g/Educatioo/Advocacy
.
(
A. Kispert, CEO
'-Rape Crisis Intervention Service of Carroll County
124 North (enter Street, Room 102 PO. Box 1563 Westminster, MD 21158 Office Phone (410) 8570900 Fax (410) 876-9147 14 Hour HOlline(41OJ 857-7322
Ra peCrisisCC.org
Case 2:15-cv-01516-NJ FiledWI'IW.
03/08/16
Page 47 of 49 Document 19-1
"
Continuing the Missions of the Stephanie Roper Committee and Foundation, Inc.
Email: mail@mdcrimevictlms.org Web Page: www.mdcrimevlctims,org
Toll Free: 1-8n-V1CTIM 1
.
218 E. Lexington Street, Suite 401
Baltimore, MD 21202
410-234-9885 (phone)
410-234-9886 (fax)
Testimony of Roberta Roper and RusseD P. Butler, Esq. in Support of Senate BiU
673 - Courts and Judicial Proceedings - Testimony by Convicted Perjurer
March 1,2012
The Maryland Crime Victims' Resource Center, Inc. (MCVRC) urges a favorable with amendment report
on SB 673. While not one of the four MCVRC priorities for 2012, we support this bill as a matter offaimess and
justice. The inability to testify will substantially prejudice a victim not only if the State cannot prosecute a crime
against an offender, but also in cases concerning collateral civil matters where the victim is a plaintiff or a
defendant. Society needs to have a judicial system where civil and criminal matters can be resolved for all of its
citizens.
mSTORY AND BACKGROUNDMaryland - Maryland has both a statutory provision and a court rule related to testimony of persons
convicted of certain crimes.
Statute - Under Courts Article, 9-104, a person once convicted of perjury can never testify in
any matter whether it be criminal, civil, domestic, administrative, etc. This statute is the last remnant of a common
law rule that precluded all convicted felons from testifying. 6 Maryland Evidence, 60 I :2 Perhaps the only way
under Maryland law for a victim to be able to testify would be for the victim to obtain a pardon from the perjury
conviction.
Maryland Rules - Title 5 of the Maryland Rules relating to evidence were adopted by the Court
of Appeals effective July 1,1994. Among the Rules adopted is MD Rule 5-609. (See Attachment B.) The source
of Rule 5-609 derives from F.R. Ev. 609 (See Attachment A) and former Maryland Rule 1-502. Pertinent part of
the Rule 5-609 includes:
I. The crime attacking the witness's credibility must be an infamous crime (like perjury) or other
crime relevant to the witness's credibility.
2. The court balances the probative value versus the danger of unfair prejudice.
3. The evidence of the conviction is not admissible ifmore than 15 years have elapsed since the
conviction.
Federal- Under the Federal Rules of Evidence, a person convicted of certain offenses including perjury is
allowed to testify, but the conviction may be used to impeach the witness. Pertinent part ofF.R. Ev. 609 includes:
1. The applicable crimes are those with a maximum statutory penalty greater than one year or
death and those regardless of the penalty if the offense involves elements of dishonesty or a
false statement.
2. Under certain circumstances, court balances the probative value versus the danger of unfair
. _... p!ejudice.
3. After the later of 10 years after .the witneSs's conviction or release from incarceration,
the court must balances the probative value versus the danger ofunfair prejudice..
%ill.
*"
0/1
lffl.
EXIsTING PROBLEM - Maryland law preventing testimony from those convicted ofperjury is far more
restricted than as allowed in federal court. In a criminal case, if the victim is the only witness or there in a defense
in the case such as consent, there will never be the possibility of a conviction ofthe perpetrator and there will be a
lack ofjustice for the victim and society because the justice system is closed off with the perjury conviction.
Appended to this testimony is a hypothetical fact pattern that Russell Butler's uses in the Rights of Crime Victims
law school class that he teaches at the University of Baltimore Law School. (Attachment C) Even the possibility
that someone could target another and that the system could do nothing about prosecuting the offender is the
anthesis ofjustice.
PROPOSED SOLUTION - Under SB 673, a victim would be able to testify "if the testimony relates to
events in which the person is an alleged victim.." While far better than existing law, MCVRC believe the language
does not go far enough. Some examples:
Assume that the sexual assault was committed against a one year old minor child and the only
witness who can identify the perpetrator is an individual who has a perjury conviction.
Assume a civil case related to a creditor suing a victim ofidentity theft, a foreclosure action based
on mortgage fraud, or consequential and incidental damages caused by but unrelated to the "events
in which the person is an alleged victim."
Assume a wrongful death action arising out ofa criminal homicide and the survivor ofthe victim
seeking compensation has a conviction for perjury, the survivor is unable to testify regarding the
loss of support and the mental distressed caused by the death.
ALTERNATE SOLUTION - MCVRC believes that a convicted perjurer's testimony should not be
disqualified as incompetent, but instead should be subject to impeachment in the same manner as a person
convicted ofa similar infamous crime. Moreover if perjury is deemed a more serious crime, the General
m Assembly should eliminate the 15 year provision ofMO Rule 5-609(b).
%I
(A)
-- Al ExC&PT AS
(B)
A PERSON CON'JlCTED OF PERJURY MAY TEs:TIFY IF THE
TSSTIMONY R&bATES TO
IN WHICH THE PERSON IS AN ALLeGED 'ACTIM;
THE PROVISION IN MARYLAND RULE 5-609(8) THAT EVIDENCE OF A CONVICTION 15 NOT
ADMISSIBLE IF A PERIOD OF MORE THAN 15 YEARS HAS ELAPSED SINCE THE DATE OF
THE CONVICTION DOES NOT APPLY TO A PERSON CONVICTED OF PERJURY.
"
We hope that the General Assembly will alter the admissibility of testimony for a conviction of perjury to
treat those convictions similar to convictions of other infamous crimes. We therefore urge a favorable with
amendment report from this Committee on SB 673 so that justice may occur and not be hindered.
:"-.
....
. - .,...
. '. '"
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11
EXHIBIT B
He did not file in Howard County because of his efforts in April 2013 as leader of an
"Everybody Blog About/Call the Howard County State's Attorney Day" right wing
blog meme. Defendant Hoge and Defendant Walker were "upset" that Howard
County refused to file new charges against Mr. Kimberlin for being in the courthouse
at the same time as Mr. Walker was seeking to have new charges filed against me, in
which he was also unsuccessful. Hundreds of right wing bloggers tied up the office
phone of the Howard County State's Attorney as a result, which would explain why
he might be hesitant to bring charges against someone in Howard County.
He refers to me as an "associate" of Mr. Kimberlin. While it is true that Mr. Kimberlin
and I have become friends over the past year, we only met as a result of Mr. Hoge's
sustained campaign of harassment against me. Defendant Hoge describes me as a
"public relations mouthpiece" for Mr. Kimberlin when that could not be further from
the truth. In fact, at a recent court-approved mediation between myself and Mr.
Hoge, I again restated that I was happy to tell both sides of the story in this lawsuit,
but that I need the other side to respond with more than taunts, insults and/or
silence. Defendant Hoge claims that I have "often published factual claims made by
Plaintiff of the details of his court papers before they have been served on any
Defendant or have appeared on PACER."While I cannot answer to whether or not I
have published anything before papers were served on one defendant or another,
given the propensity for several of the defendants in this case to undertake
Herculean measures to avoid being served, I can state to the best of my knowledge
that I have never published details of a filing before they appeared on PACER.
Defendant Hoge has been engaged in a systematic attack on me since I first began
investigating Defendant Akbar's misrepresentation of Defendant National Bloggers
Club's self-claimed SOl(c)3 status. As a person with Parkinson's disease, I react very
negatively to stress. This is a fact known to Defendant Hoge, one he uses to his
advantage. He understands that by continuing to smear me in the attempt to injure
the Plaintiff or damage his claim, that each subsequent charge makes my
Parkinson's disease worse. Parkinson's is a progressive neurological disorder. It
always gets worse. Nothing can make it improve. But it is proven that stress does, in
fact, irreversibly cause the downward progression of the disease to accelerate.
When I first became involved in this matter as a reporter, and when I was first
dragged into court by Mr. Hoge for the "crime" of reporting facts, I was largely able
to walk unassisted. Now I am wheelchair bound. There are other outward and notquite-so-visible signs of increased degeneration, including the onset of early
Parkinson's disease dementia.
I mention this, your honor, as Defendant Hoge has attempted to extort me by
threatening to include me in this lawsuit somehow if I "try his patience" any further,
knowing that such a legal adventure would further accelerate the damage done by
Parkinson's and hasten the approach of the imminent end.
Your honor needs to be aware of the nature of these people, the harm they are
willing to do. and the price in the suffering of others they are willing to pay to
destroy the Plaintiff in this case.
Respectfully,
William M.Schmalfeldt
6636 Washington Blvd. Lot 71
Elkridge, MD 21075
410-206-9637
EXHIBIT C
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...
Now comes Plaintiff Brett Kimberlin and responds to this Court's Order to Show
Cause regarding service on Defendants National Bloggers Club, Ali Akbar, Lee
Stranahan,
Breitbartcom
and KimberiinUnmasked.
and KimberlinUnmasked
Thomas.
Plaintiff has already talked with the Clerk of the Court and has
prepared
summons
by phone
Defendant Stranahan
II"
"i
BRETT KIMBERLIN,
Plaintiff,
v.
has
agreed to accept electronic service of all papers in this case from Plaintiff and
Plaintiff has served him that way with a copy of the Second Amended
Complaint
. ,
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restricted
on the part of the signer since, according to the Postal Service online tracking
service, the complaint was delivered on January 4, 2014 at 10.03. Exhibit A.
4. Plaintiff has sent the previous complaint and summons to Defendants Ali
Akbar and National Bloggers Club by certified mail but they have been
returned
the suit, and Defendant Akbar, who was the President of The National
Bloggers Club, has discussed the suit online, on Twitter, and on his Internet
radio program.
S. Plaintiff will file a request with this Court to serve Defendants Akbar and
National Bloggers Club by Alternate Service in the next 14 days with the
Second Amended Complaint
6. Defendant KimberlinUnmasked
subpoenas
County Circuit Court as Lynn Thomas from Illinois. She is named in the
Second Amended Complaint and Plaintiff will serve her at her last known
address in the next 14 days.
7. KimberlinUnmasked
hundreds
has spent the past four months mocking this suit with
CI!St4
Brett Kimberlin
Certificate of Service
I certifY that I have served a copy of this Response on Lee Stranahan, Ron
Coleman, Catilyn Contestable, Michael Smith, and Mark Bailen by email, and
on Defendants Hoge, The Franklin Center, McCainand Walker by First Class
mail this 11th day of March, 2014.
Brett Kimberlin
EXHIBIT D
----------------------------x
BRETT KIMBERLIN
Plaintiff,
v.
AARON WALKER, ET AL
Defendant.
----------------------------x
HEARING
Rockville, Maryland
April 9, 2014
1/)1 ORIGINAL
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 2 of 28 Document 19-4
----------------------------x
BRETT KIMBERLIN
Plaintiff,
v.
AARON WALKER, ET AL
Defendant.
----------------------------x
Rockville, Maryland
April 9, 2014
APPEARANCES:
FOR THE PLAINTIFF:
BRETT KIMBERLIN, Pro Se.
8100 Beech Tree Road
Bethesda, MD 20817
FOR THE DEFENDANT:
PATRICK F. OSTRONIC, Esq.
932 Hungerford Drive Ste. 28-A
Rockville, MD 20850
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Case 2:15-cv-01516-NJ Filed 03/08/16 Page 3 of 28 Document 19-4
PRO C E E 0 I N G S
1
2
THE COURT:
Please be seated.
THE CLERK:
Walker et AI.
THE COURT:
MR. KIMBERLIN:
MR. OSTRONIC:
Pro Se.
Ostronic on behalf of Mr. Walker, Mr. Hage, Ms. Malone, and Mr.
10
Good morning.
11
12
13
14
15
16
17
18
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MR. KIMBERLIN:
20
THE COURT:
21
MR. KIMBERLIN:
Yes.
Okay, I would like to take this
22
23
Walker.
24
25
dealt with.
The--
1
2
THE COURT:
So, you're
withdrawing that?
MR. KIMBERLIN:
No, Mr.
Okay.
MR. KIMBERLIN:
10
11
could file papers for somebody else and Judge Burrell ruled
12
against that --
13
THE COURT:
14
MR. KIMBERLIN:
15
THE COURT:
16
MR. KIMBERLIN:
Okay I
so number 53 is withdrawn.
Yeah.
17
18
already
I/ ve asked
19
THE COURT:
20
MR. KIMBERLIN:
21
THE COURT:
60 is not my motion.
22
23
MR. OSTRONIC:
24
MR. KIMBERLIN:
25
The
5
6
that's right.
Motion for
TH8 COURT:
60, the court is dismissing 78 and 81 and 94 are moot and that
MR. KIMBERLIN:
MR. OSTRONIC:
9
10
THE COURT:
Did
The
11
MR. OSTRONIC:
Correct.
12
THE COURT:
13
14
dismissed.
15
MR. OSTRONIC:
16
THE COURT:
17
MR. OSTRONIC:
Right.
Then I have two that are moot, 81 -81 should not be moot, your honor,
18
19
20
THE COURT:
21
MR. KIMBERLIN:
22
THE COURT:
23
MR. KIMBERLIN:
24
THE COURT:
25
Let's see.
Hold on a second.
6
1
It says
But that's
honor?
THE COURT:
Just one --
10
(HUSHER ON]
11
[HUSHER OFF]
12
THE COURT:
13
14
15
16
your honor.
THE COURT:
17
18
19
due.
20
MR. OSTRONIC:
21
(unintelligible).
22
23
THE COURT:
24
MR. OSTRONIC:
25
If I may
Right.
At that time, Judge Burrell took note
THE COURT:
MR. aSTRONIC:
altered documents.
10
11
THE COURT:
Okay,
50
seeking?
MR. OSTRONIC:
12
13
14
court.
15
THE COURT:
16
17
MR. OSTRONIC:
No,
As we outlined
18
19
20
21
22
23
24
25
Mr. Akbar
stated that -- at that time I stated that Mr. Akbar had never
came back the next day and asked for sanctions against me saying
these -- this time his two green cards that he showed were now
10
11
Mr. Kimberlin
12
13
14
spent the money to do so and was never asked the Post Office to
15
do restricted Ii.
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17
18
19
20
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23
24
on the next to last page it says -- you can see the receipt with
25
THE COURT:
I know you
MR. OSTRONIC:
THE COURT:
Judge Burrell, at that point he had checked boxes that had not
MR. OSTRONIC:
10
11
no -- yes.
12
filing -- if you look at that you will see the priority mail
13
14
THE COURT:
15
MR. OSTRONIC:
16
17
delivery one.
Exhibit C?
18
THE COURT:
19
MR. OSTRONIC:
20
21
98929871, okay.
9892, those are the -- those are the
two receipts that show you that he paid for -- what he paid for
there was no restricted delivery paid for.
22
23
24
THE COURT:
25
The restricted
entries?
MR. OSTRONIC:
exhibit.
shows the green -- the receipt card, certified mail check; the
THE COURT:
MR. OSTRONIC:
Okay.
And that is consistent with the fact
10
THE COURT:
11
MR. OSTRONIC:
Now we fast
Okay.
12
13
you'll see there, your honor, the same card but it's checked
14
15
THE COURT:
Okay.
16
MR. OSTRONIC:
17
18
19
THE COURT:
20
pleadings are all well before the order that Judge Burrell
21
22
MR. OSTRONIC:
23
THE COURT:
24
25
efforts.
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
No, it hasn't.
6
7
THE COURT:
I filed a motion
appropriately?
MR. OSTRONIC:
THE COURT:
10
No.
She didn't?
MR. OSTRONIC:
11
of January 25 th
12
13
14
THE COURT:
15
MR. OSTRONIC:
Uh-huh.
16
THE COURT:
17
18
Akbar with the complaint and that defendant Akbar has notice of
19
20
21
22
March 26th."
23
24
25
Okay.
"Therefore the
MR. OSTRONIC:
says.
THE COURT:
service.
2
3
THE COURT:
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
Okay.
THE COURT:
10
Okay.
MR. OSTRONIC:
11
12
after that court hearing and was not part of what I asked for
13
here.
14
this is not yet heard; this is the first time that it's been
15
heard.
16
17
THE COURT:
I did not
Burrell in January?
18
MR. KIMBERLIN:
19
THE COURT:
20
The 13th.
21
MR. KIMBERLIN:
22
MR. OSTRONIC:
Yes.
They had just gotten {unintelligible],
23
your honor, they had not been yet addressed as a motion for
24
sanctions.
25
THE COURT:
13
1
3
4
THE COURT:
MR. aSTRONIC:
-- I
THE COURT:
MR. aSTRONIC:
THE COURT:
10
11
your
honor.
Okay.
But I
12
13
at this time and she -- what she said, your honor, was she
14
15
16
was not going to dismiss the case at that moment, that's all.
17
But I think it's clear, your honor, that there has been an
18
alteration of documents.
19
20
21
MR. KIMBERLIN:
22
THE COURT:
23
24
25
going to file
She just
Objection.
Go ahead.
MR. OSTRONIC:
(unintelligible) .
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
THE COURT:
May I speak?
then I'm going to let you address what he said and what he
wants.
HR. OSTRONIC:
10
Objection.
11
against Mr. Akbar dismissed because Mr. Kimberlin here has tried
12
13
14
15
THE COURT:
Okay.
16
MR. OSTRONIC:
17
18
THE COURT:
19
MR. KIMBERLIN:
20
21
22
23
litigant.
I apologize.
THE COURT:
24
but Judge Burrell heard this issue at the January 15th hearing.
25
She's
15
I reset it to Mr.
alternate service.
the docket number on it but she amended her order which I have a
So, I did exactly what Judge Burrell asked for and you know he's
10
11
judge.
12
THE COURT:
13
MR. KIMBERLIN:
14
THE COURT:
I don't have
All right.
15
16
let's listen to Judge Burrell heard and what Judge Burrell said.
17
MR. KIMBERLIN:
Okay.
18
THE CLERK:
19
THE COURT:
20
21
22
motion to dismiss.
23
24
25
MR. OSTRONIC:
hearing.
16
1
MR. KIMBERLIN:
THE COURT:
MR. OSTRONIC:
How long?
About 40 minutes, your honor.
THE CLERK:
THE COURT:
UNIDENTIFIED FEMALE:
10
11
THE COURT:
12
issue?
13
MR. OSTRONIC:
14
15
THE COURT:
16
MR. OSTRONIC:
17
I don't
[unintelligible).
18
MR. KIMBERLIN:
19
THE COURT:
20
MR. KIMBERLIN:
21
MR. OSTRONIC:
22
THE COURT:
23
MR. KIMBERLIN:
[unintelligible].
I have no problem with that.
Court (unintelligible].
24
very diligent trying to get this thing served on this guy and
25
for them to come in here now and say they're going to appeal
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
You know
Yes.
He had just misrepresented any
10
MR. KIMBERLIN:
11
MR. OSTRONIC:
12
I asked him
{unintelligible].
I admit (unintelligible) to another
side.
13
THE COURT:
14
15
THE COURT:
16
17
THE COURT:
Go further.
18
19
[unintelligible].
20
at this time.
21
22
23
24
25
MR. OSTRONIC:
Your honor,
[unintelligible).
THE COURT:
Your honor,
18
1
Ms. McCain
If, however,
Ms.
10
11
12
13
14
[unintelligible].
15
16
charge [unintelligible].
THE COURT:
18
MR. OSTRONIC:
20
17
19
Ms. McCain
[unintelligible].
(unintelligible] is what I'm saying but
21
22
23
24
25
MR. OSTRONIC:
I think a
[unintelligible] composed
[unintelligible].
otherwise nothing.
[unintelligible] .
THE COURT:
6
7
10
[unintelligible] everything
[unintelligible] .
MR. OSTRONIC:
8
9
11
12
The rule
13
14
15
appeals.
16
MR. KIMBERLIN:
Thank you.
17
MR. OSTRONIC:
18
19
THE COURT:
20
MR. OSTRONIC:
21
that.
22
23
THE COURT:
24
MR. KIMBERLIN:
25
Do you remember?
No, I doni t
continue my --
THE COURT:
MR. KIMBERLIN:
THE COURT:
11
[unintelligible] .
MR. OSTRONIC:
9
10
time.
THE COURT:
12
[unintelligible].
13
14
15
16
17
MR. OSTRONIC:
[unintelligible] .
18
THE COURT:
19
20
THE COURT:
All right,
21
regardless of what she may have said, she made it clear what she
22
23
24
meant these are the motions that just had been filed and they
25
weren't right.
She
MR. KIMBERLIN:
MR. KIMBERLIN:
THE COURT:
And the
No, I just told you I'm not going to -I know but -consider what she said or didn't say
HR. KIMBERLIN:
10
dismiss.
11
12
I think.
Go ahead.
THE COURT:
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18
19
MR. KIMBERLIN:
So let's get
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22
1
here sitting right there that this was sent in January 2nd to
Mr. Akbar.
THE COURT:
MR. KIMBERLIN:
THE COURT:
This one
card being filed -- the support motions you filed, the different
10
11
12
13
MR. KIMBERLIN:
14
THE COURT:
15
MR. KIMBERLIN:
16
THE COURT:
17
MR. KIMBERLIN:
18
THE COURT:
19
20
accurately reflected the green card that had been filled out.
MR. KIMBERLIN:
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litigant and --
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THE COURT:
25
MR. KIMBERLIN:
THE COURT:
10
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accurate?
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MR. KIMBERLIN:
So,
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that motion.
21
and so I redid it and then she granted the motion for alternate
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23
amendment here.
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25
service the second time and she still ruled that the case --
She denied
THE COURT:
to do, sir, I'm going to fine you but I'm not sure I have the
MR. OSTRONIC;
THE BAILIFF:
10
11
minute.
MR. OSTRONIC:
14
15
Okay.
(Recording paused.)
17
(Recording resumed.)
1S
THE COURT:
20
Thank
you.
16
19
Give me a minute.
All rise.
MR. OSTRONIC:
12
13
Okay?
So
as much as I want very much, Mr. Kimberlin, to fine you for what
for altering the receipts, I can't find any authority in the
21
rules for that given the posture in which we're here which is
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24
25
So under the
25
1
and you can still maintain that with her but I'm going to deny
the motion.
MR. KIMBERLIN:
THE COURT:
Thank you.
MR.
THE COURT:
10
KIMBERLIN:
Yes.
11
MR. KIMBERLIN:
12
THE COURT:
13
MR. KIMBERLIN:
14
THE COURT:
Right.
15
you weren't before -- you're aware now and you do not alter
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alleging.
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MR. KIMBERLIN:
21
THE COURT:
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MR. KIMBERLIN:
23
MR. OSTRONIC:
24
THE COURT:
25
MR. OSTRONIC:
I understand.
Okay.
Thank you.
Thank you, your honor.
Sorry.
THE COURT:
Thank you.
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
Oh.
8
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BRETT KIMBERLIN
v.
10
AARON WALKER,
ET AL
11
12
13
By:
14
15
16
17
N(JL1l.
lfl a-
18
19
Transcriber
20
21
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23
24
25
EXHIBIT E
.,
v.
in the light
most favorable to the Plaintiff, and with every doubt resolved in his behalf, the
Complaint states any valid claim for relief," 5A Wright & Miller, Federal Practice and
Procedure: Civil 2d
S 1357,
allegations in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S, 232, 236
(1974); Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969). The Court must further
disregard the contrary allegations
F.2d 712, 715 (4th Cir.1969); Lujan v. National Wildlife Federation, 497 U.S. 871
(1990) ("a complaint should not be dismissed for insufficiency unless it appears to a
certainty that plaintiff is entitled to no relief under any state offacts which could be
proved in support of the claim. ") (emphasis added).
1
,
Maryland's Three-Year Statute of Limitations Applies to Plaintiffs False Light
Invasion of Privacy Claim
1. Defendants argue that Plaintiffs claim of False Light Invasion of Privacy is
barred by Maryland's one year statute of limitations, and they cite Smith v.
Esquire, 494 F. Supp. 967 (D. Md. 1980), in support oftheir argument.
This is
without merit
2. In 1988, Maryland's highest Court rejected the reasoning of Smith in Allen v.
Bethlehem Steel Corp., 314 Md. 458 (1988):
We disagree with Smith. What the district court judge said in Smith may be
true, but the Maryland statute of limitations is vividly clear. An action for
libel and slander shall be filed within one year of the date it accrues. Courts
Art. ~ 5-105. Other tort actions shall be filed within three years of the date
they accrue. Courts Art ~ 5-101. Nowhere in ~ 5-101 does it provide an
exception for "false light" cases. Even though we recognize the district court
judge's view as to how the statute of limitations will be avoided, that
"loophole" must be plugged by the Legislature.
Clearly, Maryland general three-year
imputed and
The Defendants
are false and portray Plaintiff in false light A plaintiff may prove a
claim offalse light invasion of privacy by showing: (1) that the defendant
gave publicity to a matter that places the plaintiff before the public in a false
light; (2) that a reasonable
falsity of the publicized matter and the false light in which the defendant
placed the plaintiff. Bagwell v. Pennisula Regional Medical Center, 665 A.2d
297 (1995).
4. Clearly, Plaintiff has properly alleged a false light invasion of privacy claim.
made more than one year before filing of the instant suit." Hoge at 11. See
also Walker at 41. These arguments
of
reasons.
6. On June 8, 2012, Defendant Hoge wrote a letter and published it on his blog
stating that Plaintiff was a swatter who should be investigated
and put in
prison. Complaint at 28. Defendant Walker on his personal blog and on his
personal Twitter account has repeatedly
falsely accuse Plaintiff of crimes in order to harm him and raise money for
the Defendants.
among the Defendants, and the overt acts of this conspiracy accusing Plaintiff
of swattings
Hoge and
Walker are members, stated on his blog on October 14, 2013, that Plaintiff
was responsible
to raise funds for Defendants Hoge and Walker and other bloggers to pay for
legal costs in this case involving Plaintiff. Exhibit A. Defendants Hoge and
Walker, in turn, ask readers on their blogs and on Twitter accounts to donate
to the National Bloggers Club. Therefore, Defendants Hoge and Walker, as
members of the National Bloggers Club, which continues to raise money
based on false assertions
of Plaintiffs involvement
in swatting, defamed
Plaintiff as a swatter as late as October 14, 2013, well within the one-year
statute of limitations.
8. Since Plaintiff has alleged a conspiracy in this case, the statute of limitations
does not begin until the last overt act of the conspiracy.
P.2d 588, 292 (2d Dist. CA 1954) ("where the complaint alleges that all the
allegedly libelous acts were committed
the defendants,
pursuant
to a conspiracy
formed by
any of the libelous acts until commission of the last over act done in
furtherance
of the conspiracy.")
took these threats even further by twice filing false criminal charges against
Plaintiff in February and March 2013, which were nolle prossed, and then
filing a false Peace Order against Plaintiff in March 2013, which was denied
and which he then appealed in May 2013, and that was also denied. Exhibit
B. Defendant Walker attempted to file criminal charges against Plaintiff in
Howard County on or about March 13, 2013 and when that was rejected, he
filed a Peace Order on the same day, which was also rejected. Exhibit C.These
false charges were intended to instill fear in Plaintiff and did intimidate
Plaintiff not to seek redress. Defendant Walker also filed two malicious civil
suits against Plaintiff in 2012, which were intended to stop him from seeking
redress. In fact, in Walkerv. Kimberlin et ai, 12-CV-01852-jFM, filed in this
Court, Defendant Walker asked the Court to prohibit filing any suits or
pleadings in court unless first getting permission from a court appointed
administrative law judge.
10. Defendants Hoge and Walker continue to intimidate Plaintiff every day of the
week and raise money based on their exploitation of their false narratives. In
fact, they filed motions in this case to require Plaintiff to file all pleadings
under oath so they could file more harassing criminal charges against
Plaintiff based on their delusional conclusions of perjury. This Court properly
denied those motions on December 30, 2013. They write at least one daily
post on their blogs about Plaintiff and send hundreds if not thousands of
tweets a month about Plaintiff filled with all sorts of intimidating language,
graphics, and threats of imprisonment and doom. All of these are
accompanied by a donate button to help them raise money to target Plaintiff.
See e.g., Exhibits Dand E. Many of these posts accuse Plaintiff of crimes and
5
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 6 of 32 Document 19-5
redress.
11. It is well established
defendant
seeking redress.
or intimidates
a party against
or threatening
behavior
ceases. Cf. Murphy v. Merzbacher, 346 Md. 525, 532, 697 A.2d 861 (1997).
12. Clearly Plaintiff has brought this defamation
tactics, and
claim.
statement
others in the
or dealing
proof because
(1) he was convicted of a crime that occurred in 1979 and (2) is a public
figure. These arguments
15. The Defendants, through their various frivolous lawsuits, Peace Orders and
criminal charges against Plaintiff, have been trying to get a judge, any judge,
to rule that Plaintiff is a public figure. On each and every occasion, this
argument
has failed. In fact, when Defendant Walker filed a motion for such
02/09/2012
Docket
Description:
Docket Type:
Ruling Judge:
QUIRK, JOSEPH
Reference
Docket(s):
Motion: 119
Docket Text:
16. Plaintiff is the Director of a Maryland based non-profit that works with
famous bands and artists to inspire youth to get involved with civic
participation.
Defendants
Yet
of
of
conduct.
tens of thousands
in donations,
search engines, and inciting their readers to hate Plaintiff, to attack him, to
stalk him, and to harass him, his family and anyone, including judges,
prosecutors
and reporters,
who supports
In fact, Defendants Hoge and Walker were the creators of a campaign against
the Howard County Prosecutors
harassment
Plaintiff
and others for the false crimes concocted by Hoge and some of the other
Defendants.
publishing that Plaintiff was a swatter or was involved with swattings. New
York Times Co. v. Sullivan, 376 US 254 (1964).
Plaintiff
Has Properly
to
18. Defendants Hoge and Walker argue that Plaintiff has not alleged two
predicate acts or the existence of a RICO Enterprise.
These arguments
are
without merit.
of which Defendants
Hoge and Walker are members, has publicly stated that it is a sOl( c)(3) nonprofit which accepts tax-deductible
donations.
because it has neither applied for nor been granted sOl( c)(3) status by the
Internal Revenue Service. Exhibit I.
20. NBC has raised more than $10,000 in donations as a result of its fraudulent
representations.
wire/Internet
mail fraud under 18 USC 1341 and 1343. NBC received scores ifnot
hundreds
of donations
a separate
predicate act under RICO. Wang Laboratories v. Burt, 612 F.Supp. 441
(D.Md.1984 ) (each act is a separate
fraudulent
fundraising
laundered
constitutes
22. The Defendants, including Defendants Hoge and Walker, knew that NBC was
fraudulently
President and Defendant Ali Akbar as a convicted felon from the State of
Texas. Those media reports disclosed that NBC had never applied for or
received sOl(c)(3)
10
11
of justice claims
unannounced
as well as
pending
Third,
Exhibit L. And
fourth, Congress Members raised the issue of swatting on the floor of the
House on at least one occasion. Therefore, the Defendants'
prohibited
officials.
27. The Defendants falsely told the FBI, Senators and Congress Members that
Plaintiff was involved with the swattings and then intimidated
engaging in conduct that resulted in him being repeatedly
appear in court or talk to law enforcement
stalked, threatened
Plaintiff by
threatened
not to
him with prison, with job loss and caused death threats
him in the
12
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 13 of 32 Document 19-5
retaliation
constitutes
obstruction
by 18 USC
1512(k).
29. All of these obstruction
RICO.
Plaintiff
Properly
30. Plaintiff has alleged in the Complaint that the National B10ggers Club is a
fraudulent
Enterprise
itself as a 501(c)(3)
non-
representation
13
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 14 of 32 Document 19-5
31. Most of the Defendants are members of, paid by or otherwise involved with
the National Bloggers Club in some fashion. Defendant Ali Akbar is the boss,
Patrick Frey is the consigliore, DBCapitol Strategies is the legal muscle, and
various other Defendants are the lynch mob, taking orders from Defendants
Akbar and Frey to harass Plaintiff through various means such as physical
assault, stalking. malicious legal filings, and false allegations online.
32. Most of the Defendants have been or are involved with a common scheme to
harm Plaintiff with false narratives of crimes in order to raise funds, increase
their ranking on Internet search engines, and incite their readers to act in
some harmful way against Plaintiff and his employer.
33. The Defendants have conspired with one another in their common purpose
through a course of conduct, which has lasted for more than two years,
involving scores of predicate acts and intent to violate the laws of the United
States and the rights of Plaintiff. The Complaint sets forth in great detail that
the Defendants have both a formal and informal framework, with daily and
sometimes hourly contact through various networks, mainly through the
Internet, for carrying out its objectives. The Defendants function as a
continuing unit to achieve the common purpose of harming Plaintiff in every
and any way possible. This clearly satisfies the RICOEnterprise requirement.
Boyle v. United States, 556 U.S.938 (2009).
14
(relating to mail fraud), section 1343 (relating to wire fraud) ...." The
Complaint clearly alleges more than two acts in furtherance
of the conspiracy
that may be in violation of the mail and wire fraud statutes. Additionally, the
Complaint alleges acts of extortion and money laundering
order to injure Plaintiff, his property, his livelihood and his employer.
35.ln order for a plaintiff to have standing to bring a RICO claim, he must allege
an "injury in his business or property" by reason of a violation of RICO. 18
U.S.c. 9 1964(c).
this Court found that "Wang's allegations of injury to its business reputation
and customer goodwill in addition to its loss of revenues satisfied the injury
requirement
allegations of monetary
losses as a result of
Hellenic Lines, Ltd. v. O'Hearn, 523 F.Supp. 244, 248 (S.D.N.Y. 1981) (the
corporation
monetary
36. Defendants
and committed
predicate
acts in order to cause maximum harm to Plaintiff, his livelihood, his property,
and his employer.
right to redress.
was to drive
15
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 16 of 32 Document 19-5
McMonagle, 868 F.2d 1342 (3rd Cir. 1989), the Court addressed
situation where activists used threats, intimidation,
a similar fact
as the
director of a non-profit that he had worked at for the previous eight years.
He had a "property
pay his salary and the other salaries and expenses of the business.
Defendants
Yet,
attempted
property
interests. They have stated many times that they want to destroy
the non-profits
16
his property
of RICO.
Plaintiff Properly Alleges Conspiracy to Violate the Ku Klux Klan Act of 1871
Under 42 USC1985
36. To state a claim under 42 U.S.c. ~ 1985, a plaintiff must show that the
Defendants conspired
'possessed
wrongdoer
United States v. Classic, 313 U.S. 299, 326 (1941). Generally, "a public
employee acts under color of state Jaw while acting in his official capacity or
while exercising his responsibilities
pursuant
50. See also Griffin v. Maryland, 378 U.S. 130, 135 (1964) ("If an individual is
possessed
of state authority
and purports
his
had he acted in a purely private capacity or that the particular action which
he took was not authorized
of state law when he relied on the authority of his State role as a prosecutor
to threaten
between the wrongful act (the issuance of the threats and the attempts
investigate and imprison Plaintiff for swattings)
of his authority
as a prosecutor
to
37. Defendant Frey is a Los Angeles District Attorney who has used his position
under color of law to harass, retaliate against, intimidate, threaten and
attempt to imprison Plaintiff, and incite others to do the same. He is the
person all the Defendants rely on to give their false narratives credibility. He
is the equivalent of the Alabama Sheriffby day and the Klan leader by night
directing his hooded followers to destroy his perceived enemies, including
Plaintiff. He regularly contacts the Defendants through email, phone, direct
messages and other means of communication to facilitate his tortious
destruction campaigns.
38. When Plaintiff complained to Defendant Frey's supervisors about his
conduct, Defendant Frey retaliated against Plaintiff by concocting the false
swatting narrative. He wrote an email to Defendant Walker telling him that
he had contacted and met with the FBI in Texas and elsewhere, and provided
false information about Plaintiff. Exhibit O. He contacted Barrett Brown, the
head of the hacking group Anonymous and tried to interest him in Plaintiff.
Exhibit P. There was an implicit quid pro quo in that request because Brown
was facing legal problems of his own. Frey counseled Defendant Walker on
how to file and prepare legal filings against Plaintiff to make him appear
odious: "No, You have to start with ten seconds of labeling him a convicted
bomber and convicted perjurer, and say this is established by major media
stories and by published court decisions. Then say he obtained the
injunction by repeatedly perjuring himself and that you can prove it ... Ethos
first Then logos. Then pathos." Exhibit Q. Frey threatened to criminally
18
investigate
When you blog it, I'll send it to Glenn Reynolds and tell
him that I think this is the BUY who swatted me ...." (emphasis added). Exhibit
S. Mr. Reynolds is a well-known
conservative
This email clearly shows that Frey was using Defendant Walker to create a
situation Frey could use to falsely accuse Plaintiff of swatting.
40. In another email exchange with Defendant Walker, Walker tells Frey, "Now
he [Kimberlin] is going to learn not to fuck with me either." To which Frey
replied: "Yeah, but he is 'fucking' with me. Just not in court. He sends
bullshit interrogatories
But
19
Plaintiff and
had asked Defendant Walker to keep quiet while the investigation proceeded.
Exhibit U.
42.ln another email dated December 19, 2011, he states: "Don't volunteer where
you got this stuff. just because of the investigation. But for that, I would be
shouting all this from the hilltops, but I still think we can put these guys in
prison, so I have to stay quiet " (emphasis added). Id.
43. In an email dated january 25,2012, Defendant Frey told Defendant Walker
while waiting for a jury in a case he was trying. ''I'm having fun. This is what I
do: prove things. I have a jury out so 1 have a little time tonight [to review the
pleading Walker prepared regarding Plaintiff]. " Exhibit V.
44. In several emails on December 21,2011, Defendant Frey discussed his
planned meeting with the FBI the following day and setting up a sting
operation with law enforcement to arrest Plaintiff. "I don't suggest lying
unless it's done under supervision oflaw enforcement as part of a sting ....
But it only makes sense as part of a monitored sting." Exhibit W.
45. On january 5, 2012, Defendant Frey asked Defendant Walker to send him a
letter about Plaintiff to share with his supervisors at the LACounty
Prosecutors Officeand other law enforcement officials. Exhibit X.
46. The above emails clearly demonstrate that Defendant Frey directly
communicated and conspired with several Defendants in this case, falsely
accused Plaintiff of swattings, and wanted to have him arrested by the FBIor
other law enforcement officers based on his accusations and a sting
operation. He discussed criminal investigations with his supervisors at the
20
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 21 of 32 Document 19-5
with Defendant
Walker while waiting for a jury. He falsely stated that Plaintiff hired people
to swat him. These actions are not those of a private citizen but rather a
person acting under color of law.
47. Not only did Defendant Frey act as a prosecutor
defendants,
to write articles
and blog posts stating that Plaintiff swatted "Deputy District Attorney"
Patrick Frey. See Complaint at 21-23.
48. On May 23, 2012, Plaintiff received a threat on his non-profit website contact
page saying: "LEAVE HIM ALONE. DON'T GO THERE." Plaintiff interpreted
this as a threat to leave Mr. Frey alone and not to contact his supervisors.
When Plaintiff checked the contact logs on for that time and that website, he
discovered
that the email came from the "Los Angeles County Sheriffs
Department,"
at IP Address 146.233.0.202
in Whittier, California.
Exhibit Y.
Only a person acting under color of law could convince an employee of the LA
County Sheriffs Office to write a threat like that
would have to feel that he would be "protected"
Readers, commenters
and reporters
online
alter ego "Patterico" is a digital extension of John Patrick Frey, the Los
21
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 22 of 32 Document 19-5
22
personification
criminal
the District Attorney. By cloaking himself with the power of his government
position, "Patterico" placed readers and Internet observers
expressions
office of the
state government.
Like the off-duty police officer who flashes his badge and
uses a department
credentials
as a prosecutor.
conferred
on a
23
during normal
business hours. Rather, "Patterico," the bJogger and Internet persona, had a
long. active online history and presence as the alter ego of Deputy District
Attorney John Patrick Frey who used that presence to violate Plaintiffs
rights.
50. Defendant Frey exploited the authority
when he threatened
to investigate
between defendant's
alleged misconduct
and
(9th
Cir. 2000) (a public officer is acting under color of state law if he or she "is
acting. purporting.
or pretending
official duties");Johnson
of his or her
Vang Xiong X Toyed, 944 F.2d 476, 480 (9th Cir.1991) ("For conduct to relate
to state authority,
to conduct
and prosecution
and
24
imprisonment
and
silence Plaintiff.
51. Defendant Frey clearly intended to prosecute
though he was not successful.
"color of law" analysis, Plaintiff need only show that the wrongful act alleged
is related to the performance
451 F.3d 1063, 1068 (9th Cir. 2006) ("the challenged conduct must be
related in some meaningful way either to the officer's governmental
to the performance
status or
of the defendant's
of the
investigate and imprison Plaintiff for false criminal violations were intended
to retaliate against and silence Plaintiff. That misconduct, which led to
Plaintiffs constitutional
state-conferred
prosecute
authority
deprivation,
and
of
his public position when he tried to imprison Plaintiff for a false crime, he
acted under "color of law" for purposes of 42 U.S.c. ~1983.
It is settled law that the First Amendment
from subjecting an individual to retaliatory
prohibits government
officials
25
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 26 of 32 Document 19-5
prosecutions,
violation,
or
"was a
Lacey v.
Maricopa County, 693 F.3d 896, 916 (9th Cir. 2012). Plaintiff need not show
that his speech or redress was "'actually inhibited or suppressed.'''
Id., citing Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283,1300
(9thCir.1999).
to be but-for causation.'
Id. at 917,
became a
in order to
Defendant Frey called and met with the FBI and told them to arrest Plaintiff
for the swattings, and Frey had his supervisors
Attorney's
26
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 27 of 32 Document 19-5
find something
Frey to violate Plaintiffs civil rights by publicly and privately pushing the
false narrative
Frey along with other Defendants are members of the National Bloggers Club,
which made the false swatting meme its first and only campaign.
Hoge and Walker have made Plaintiffs imprisonment
the past two years with thousands
Defendants
Plaintiff, their letters to Congress Members stating that Plaintiff was the
swatter and should be imprisoned,
stated in his December 11, 2011 email that he would phone a well-known
reporter
and say that Plaintiff was the person who swatted him. He also
stated that he would meet with the FBI and set up a sting operation.
54. Plaintiff has alleged a very powerful case that the Defendants, including Hoge
and Walker, conspired with Defendant Frey under 42 USC 1985 to violate
Plaintiffs civil rights.
Plaintiff
Infliction
of Emotional
Distress
Hoge and Walker callously argue that Plaintiff has not made any
allegation to demonstrate
This is without
merit
27
conduct intentionally
of extreme and outrageous conduct, the conduct "must be 'so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized society.'" Batson v. Shiflett, 325 Md. 684, 733
(Md. 1992).
38. Illustrative
intentional
of the cases which hold that a cause of action will lie for
infliction of emotional distress, unaccompanied
by physical
injury, is Womack v. Eldridge, 215 Va. 338 (1974). There, the defendant
was
photograph
a criminal
the perpetrator
of the offenses,
even though he was in no way involved in the crimes. While the victims did
not identity the plaintiff, he was nevertheless
repeatedly
questioned
nervousness
28
under
As a result, plaintiff
with the
question in recent years have held that there may be a recovery against one
who by his extreme and outrageous
conduct intentionally
or recklessly
statements
that he be investigated,
arrested
and imprisoned
for
Plaintiff and accusing him of crimes, filing three frivolous and malicious
lawsuits against him, sending a defamatory
falsely accusing him of crimes, attempting
him, rallying extremists
letter to an institutional
funder
and asking a federal court to deny him access to the courts. This abhorrent
conduct has kept Plaintiff under siege for years, and caused extremists
to
come to his home, take pictures of him and his daughter, and make
threatening
29
swattings.
This constitutes
extremely outrageous
inflicted emotional distress on Plaintiff. There are not many things in this
country worse than being falsely accused of crimes and then having those
false accusations
of thousands
Defendants
Hoge, Walker
and some of the other Defendants publish daily taunts against Plaintiffand
mock this suit with daily posts on their blogs, and continually assert that they
are going to get Plaintiff imprisoned.
Plaintiff fired. They have attacked Plaintiffs wife and teenage daughter and
even reporters
attacked prosecutors
30
Walker has even imputed in a recent blog post that Plaintiffs daughter
game for destruction
because of "corruption
of blood." Exhibit
is fair
z.
42. All of this has been intended to inflict maximum emotional distress on
Plaintiff.
multi-year basis.
to terrorize
have
that the
inflicted emotional
distress.
Wherefore,
that he entitled
Motions to Dismiss.
Respectfully s
Brett Kimber.
8100 Beech
Bethesda, MD
Certificate
of Service
DB Capitol Strategies,
Hoge, The Franklin Center, and Walker by First Class mail this 17th day of
January, 2014.
Brett Kimberli
31
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 32 of 32 Document 19-5
EXHIBIT F
content I
EXHIBIT G
http://allergic2bull.blogspot.com/2013/12/exclusive-my-monon-to-dism
iss.htm I
Also, I will as usual be redacting personal information from it, as well as any
information about Brett's eldest daughter. One of the more unfortunate facets of this
situation is the effect it is having upon his children. Indeed, given that she has only
heard her father's side of it, she probably thinks we are horrible people. She probably
doesn't know about how her father tried to frame me for a crime <http://
allergic2bull. blogspot.com /2 0 12/05 /summarypreview-of- mv-post -how-brett. html > ;
how he had me arrested for bogus reasons Gust like her mother) and obtained a
flagrantly unconstitutional peace order against me <http://allergic2bull.blogspot.com/
2012/06/new-series-of-posts-storv-i-couldnt.html>
; or how he personally stalked my
\\ife <http://allergic2bull. blogspot.com /20 13/031 excl usive-hm\'-brett -kim berIinstalked.html> . She probably thinks Dad is an innocent guy who we just picked on for
no good reason.
She probably even believes her father when he says that I commented on the article
about her successful YouTube video. Little does she know that Dan Collins
aka@vermontaigne <https:/!twitter.com/vermontaigne>,
has publicly stated he is the
author.
For me, one of the great underappreciated clauses of our Constitution is in the Treason
clause, It says: "but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted." The second part of that is
fairly easy to understand, but what about the first. What the hell do they mean by the
corruption of the blood?
Well, the answer is they are saying you cannot punish the family of a traitor as though
they were traitors, too. It is a talisman of what makes this country great.
Fundamentally we don't care who your ancestors were. They could have been kings,
they could have been beggars. They could have been heroes and they could have been
terrorists. We don't care. Because you are judged as you.
So not knowing this girl, she enjoys the presumption of innocence that belongs to all
strangers. Given the way Brett Kimberlin lies about everything, I have no reason to
think he is telling her the truth about what is going on and therefore I have no reason to
think she approves of what is actually happening here. If she knew the truth she would
know that her father has been working for years to suppress the truth about his illegal
and immoral conduct, and his criminal and immoral conduct, combined with his
Page 1 of 2
attempt to silence his critics, has brought all this attention on this family.
But allegedly a few people have harassed her online, on her facebook and the like.
There is always concern, of course, that Brett or his allies might be faking a lot of that
beha \i0 r <http://patterico. com / 20 12/ 06 / 26 / strong-circu mstan tial-evidence-thatbrett -kimberlin-is-astroturfi ng-the-alleged-threats-against -him-and -his-allies/>. But
regardless, if any person draws any negative conclusion about her based on her father,
they are not being charitable enough. They are forgetting that even when we are
talking about Benedict Arnold, we do not hold the child responsible for the conduct of
the father.
Anyway, I wish there was some way to bring Kimberlin to justice without his elder
daughter or any of his family being dragged into this. But Brett has made that
impossible. Still, I can limit the damage as much as possible, hence why I will be
keeping her name off my blog as well as her younger sister .. Other people feel like what
Brett has done makes her name newsworthy, and I will respect that view, but I will not
follow their approach.
Page 2 of 2
EXHIBIT H
VIRGINIA:
IN THE 31 ST JUDICIAL CIRCUIT COURT
Ati IoI'J
;[JJJ1t-=.(
PJai ntiff
CASE NO. ([
/2.., (51
ORDER
...
ENTERED this
(20,.1
of
Seen
t'E:
. ITeOUP:"1
=-_---':_
-=
to:
sit- k'l
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..
EXHIBIT I
My name is Aaron J. Walker, Esq., and I make these statements based upon my
3.
I have agreed to represent these Defendants pro-bono, in that I have waived any
fees for my time (while reserving the right to recover the full value of my time from the Plaintiff
if attorneys fees are awarded).
reported on some of the Plaintiffs vile personal conduct and had earned his anger. I anticipated
that if I put in an appearance in this case that the Plaintiff would file improper motions with ad
hominem arguments that attacked me personally and professionally, and that I would face
harassment as a result. Accordingly, I worked with a free speech activist to attempt to find
another lawyer willing to represent these Defendants pro bono. I have not been able to locate
such an attorney. I apologize for the Plaintiffs behavior and wish this Court to know I attempted
to avoid this ugliness entirely.
5.
The Plaintiff has decided to bring in convicted terrorist and perjurer Brett
It is worth taking a moment to review the most relevant false allegations in Mr.
Kimberlins declaration.
7.
Mr. Kimberlin claims in 1 that I met him in 2011. I never met Mr. Kimberlin at
Circuit Court. Since I have never been admitted to practice in Maryland, this amounts to a claim
that I have engaged in unauthorized practice of law. The claim is false.1 I never appeared in any
Maryland Court purporting to represent Mr. Allen or anyone else. I have only appeared in
Maryland representing myself.
unauthorized practice of law. Further, my representation of Mr. Allen, such as it was, did not
occur in Maryland. Upon information and belief, Mr. Allen lived in Massachusetts. Then and
now, I lived and worked in Virginia. I provided Mr. Allen free legal advice while in Virginia.
1
Indeed, Mr. Kimberlin filed a complaint with the Virginia Bar claiming I had engaged in
unauthorized practice of law in Maryland. They correctly found that I did not.
2
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 3 of 14 Document 19-9
9.
Mr. Kimberlin also claimed that I represented Mr. Allen under a false name. I did
10.
not.
infamous publisher of the Muslim hate blog, Everyone Draw Mohammed. Neither I nor any
of my pen names are famous or infamous to my knowledge as the publisher of Everyone Draw
Mohammed. Nor was the blog a Muslim hate blog. It was a part of a pro-freedom-ofexpression protest called Everybody Draw Mohammed Day, which counted self-identified
Muslims as participants.
11.
The idea behind the protest, as I advocated for it, was this.
At the time,
Islamofascist2 terrorists had threatened to murder anyone who depicted Mohammed in however a
benign form. Specifically, the creators of the television show South Park and Comedy Central,
which airs their programs, were being threatened by such terrorists. Upon information and
belief, millions of ordinary citizens decided to commit the same crime as the creators of South
Park, by drawing Mohammed themselves. The purpose of my blog was simply to create a forum
for those who wished participate in this protest by drawing Mohammed. I accepted submissions
with few limitations from the general public and published them on my website. The idea was to
make it so that so many people committed the crime of drawing Mohamed that the terrorists
would despair of ever carrying out their threat to kill everyone who drew Mohammed. In this
way, we sought to provide practical protection to those under threat.
I use the term Islamofascist to describe those who claim to be Muslim but advocate an
interpretation of the Koran that is opposed to freedom and democracy, to differentiate them from
the vast majority of Muslims who believe that there is no conflict between their religion and
American Democracy. The Plaintiff, in attempting to paint me as hateful of Muslims in general,
has failed to produce anything I have said that suggests that I dislike Muslims as a group. I
disagree with their faith, just as others disagree with mine, but I have no hatred of Muslims as a
people.
3
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 4 of 14 Document 19-9
12.
Mr. Kimberlin has also claimed that every one of the depictions on the website
forbidden by the Islamofascist terrorists, there was no need for it to be a negative depiction. My
rules specifically stated that there had to be a clear depiction of Mohammed for to be published
and it could not actually cross the line into pornography because I did not want the site to be
blocked by third party software. Otherwise, the content was determined by those who submitted
it. Many were insulting of the prophet. Some were even insulting of Jesus Christ, whom I
consider my Lord and Savior. I published every cartoon, regardless of whether it offended me,
because I promised it would be a free forum with the limitations outlined above. However, a
great many of the depictions were utterly unobjectionable, except that it depicted Mohammed.
This is one of my favorites:
4
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 5 of 14 Document 19-9
I like it because it is more clever than just insulting Mohammed. So is this cartoon:3
The term Streisand Effect, as I understand it, refers an observation about human nature. It
refers to how attempts to suppress expression tends to draw attention to the message being
expressed. By information and belief, the term was coined by Mike Masnick, who wrote:
How long is it going to take before lawyers realize that the simple act of trying to
repress something they don't like online is likely to make it so that something that
most people would never, ever see (like a photo of a urinal in some random beach
resort) is now seen by many more people? Let's call it the Streisand Effect.
Mike Masnick, Since When is it Illegal to Just Mention a Trademark Online? TECHDIRT, Jan.
5, 2005, available at https://www.techdirt.com/articles/20050105/0132239.shtml. Applied here,
this artist appears to be saying that the attempt to intimidate people into not drawing pictures of
Mohammed has resulted in many more people drawing Mohammed than there would have been
otherwise. Just as danger invites rescue, it can be said that attempts at censorship invites
curiosity and disobedience.
5
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 6 of 14 Document 19-9
There were enough positive portrayals of Mohammed submitted to me that I even created a
special section of my blog for them, called Happy Mohammed.
13.
assaulted him.4 I did not assault or batter Mr. Kimberlin. In fact, on two occasions, the
Montgomery County, Maryland courts have agreed with me. What did happen is that I attended
a hearing in the Montgomery County Circuit Court that Mr. Kimberlin was involved in because I
had business before the court. After the hearing and just outside of Judge Rupps courtroom, Mr.
Kimberlin made a move I interpreted as threatening and I acted to defend myself. I did so
peacefully and without harming Mr. Kimberlin in the slightest. Mr. Kimberlin later falsely
claimed that I had essentially beaten him up, punching him repeatedly, decking him at least once
and wrestling with him. Later he even produced alleged photographs and medical records
supporting his claims.
cameras in the courthouse and when the footage emerged, I was exonerated completely.
14.
how Mr. Kimberlin attempted to frame me for a crime. Mr. Kimberlin has tested our competing
versions of events twice in Montgomery Countys courts and lost each time. Mr. Kimberlin is
collaterally estopped from claiming that I assaulted or battered him.
15.
In support of this contention, I have attached a copy of the brief filed by the
Plaintiff before the Maryland Court of Special Appeals in Kimberlin v. Walker, et al., Case Nos.
1553, 2099 and 0365 (Md.App. Feb. 2, 2016) (affirming Kimberlin v. Walker, et al., No.
380966V (Md. Mont. Co. Cir. Ct. 2013)) as Exhibit A to the Opposition. I have a certified copy
of that brief that can be produced if need arises. Among the causes of action Mr. Kimberlin
4
In Maryland criminal law, the term assault, battery and assault and battery are treated as
interchangeable by statute.
6
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 7 of 14 Document 19-9
asserted against me was defamation. In the attached brief, Mr. Kimberlin states on page four that
I and my co-defendants allegedly made defamatory claims as follows:
From May 2012 through September 2013, Appellees published thousands of blog
posts, Twitter tweets and other forms of social media falsely alleging that
Appellant (1) got Appellee Walker fired from his job, (2) made up the entire story
about the court room assault, 72 (3) forged hospital records from the assault, 71
and ( 4) was a pedophile who raped his wife.
In short, Mr. Kimberlin by his own admission was testing the truth or falsity of my claim that he
had framed me for the assault. This Court is also furnished with a copy of the unreported
decision of the Court of Special Appeals affirming Mr. Walkers victory on the basis of truth.
16.
It should be noted that in testimony on April 11, 2012, in the Montgomery County Circuit, Mr.
Kimberlin stated that he went to Court before he claims he sought medical treatment.
6
The district court did, however, find harassment occurred based solely on the fact that Mr.
Walker wrote about Mr. Kimberlin to a general audience in a peaceful manner. That
determination was contrary to law and the Constitution. On a de novo appeal to the Montgomery
County Circuit Court, the entire petition was vacated and Mr. Kimberlin was treated to a lecture
about the First Amendment that lasted approximately ten minutes. In Maryland, like many
7
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 8 of 14 Document 19-9
Docket #55-1 in Kimberlin v. National Bloggers Club, et al. (I), Case No. 8:13-cv-03059 (D.Md.
2013).7 Accordingly, Mr. Kimberlin is twice collaterally estopped from claiming I assaulted or
battered him.
17.
The Kimberlin Declaration goes on to say that I was fired from Professional
I have
maintained, based on their statements to me at the time, that I was fired by this company because
they were terrified that Mr. Kimberlin might attempt to hurt me and their employees might be
caught in the crossfire. In any case, as noted in paragraph 15 supra, Mr. Kimberlin sued me in
part for saying publicly that he was responsible for my termination in Kimberlin v. Walker, et al.
Therefore the victory in that case collaterally estops Mr. Kimberlin from denying he was
responsible for my termination. The remaining allegations about the state of my office at the
time I was terminated, that I have prejudice towards Muslims,8 or about my competence are
false.
18.
Mr. Kimberlin accuses me of harassing him, his wife and his self-described
teenage daughter. I have never done any act that constitutes harassment. Indeed, at one time
Mrs. Kimberlin sought my legal help when she attempted to escape Mr. Kimberlin. Mrs.
states, district courts are essentially the small claims courts where the rules of evidence and
even the law is not followed as exactly as they would be a Maryland Circuit Court or a U.S.
District Court. I believe it is inappropriate to allow matters touching on First Amendment
freedoms to be decided a small claims court. As I have said, freedom of speech is not a small
claim.
7
Please note that today the case is captioned as Kimberlin v. Frey.
8
A person can have deep disagreements with another persons faith without being prejudiced
toward members of that faith. The fact that my marriage is between people of two different
faiths is a testament to that fact. Thus, I can believe that Mohammed was not a particular holy,
wise or good man without thinking badly of ordinary Muslims. Further, opposition to
Islamofascist terrorism is not hatred of ordinary Muslims. Indeed, upon information and belief,
terrorist organizations such as al Qaeda kill more Muslims than members of any other faith. The
murderers who carried out the September 11, 2001, terrorist attacks are in my opinion as much
the enemy of ordinary Muslims as anyone else.
8
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 9 of 14 Document 19-9
Kimberlin told me at that time that Mr. Kimberlin was a pedophile who seduced her when she
was fourteen years old and attempted to seduce her twelve-year-old cousin. I dont present this
obvious hearsay to prove it was the truth, but to explain why I was willing to help her, free of
charge, as she also attempted to obtain custody of her two daughters.9
19.
Mr. Kimberlin has accused me of stalking because I have attended court when he
would be there. He has been told by both Judges Rupp and Mason of the Montgomery County
Circuit Court that this is not stalking as a matter of law, but he continues to make this false
accusation against me.
20.
Mr. Kimberlin has accused me of defaming him and falsely accusing him
specifically of being a pedophile. As indicated supra paragraph 15, Kimberlin v. Walker, et. al.
also involved claims that I defamed him by calling him a pedophile. Because of my victory in
that case, Mr. Kimberlin is collaterally estopped from claiming I defamed him by calling him a
pedophile.10 I have never written anything in earnest11 about Mr. Kimberlin that I didnt believe
to be the truth, in court documents or in any other setting.
21.
Mr. Kimberlin states that I have lied under oath. I have not, and he has made no
Mr. Kimberlin has also alleged that I have followed his daughter on Twitter, meaning that I
asked Twitter to send what she wrote into my account. At any time a Twitter user can prevent
another person from following another persons account by blocking them or making ones
account private. I have admitted that I pressed the follow button accidentally, once. I was
researching matters related to the endless litigation Mr. Kimberlin has filed against me (he has
sued me five times in the last four years) using my touch screen phone and accidentally touched
the follow button. The moment I realized my error, I unfollowed her account.
10
Indeed the accusation appears to be supported by Mr. Kimberlins own words. See, e.g., Jason
Vest, Arts and Entertainment: Music Review, WASHINGTON CITY PAPER, February 23, 1996
(available at http://www.washingtoncitypaper.com/articles/9854/jailbird-rock) visited March 8,
2016 (discussing how Mr. Kimberlin has written songs about sex with underage girls and Mr.
Kimberlin that confessed he desired them).
11
I am excluding pure jokes, which naturally is not meant taken as a statement of truth.
9
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 10 of 14 Document 19-9
22.
Turning to the Plaintiffs MTDQ, apart from the allegations where the Plaintiff
claims to have knowledge of events that he did not personally witness (such as my termination),
the Plaintiff falsely accuses me of falsely accusing him making a rape threat.
23.
In fact, my reporting on the matter has been truthful. Specifically, in late August
To unpack that comment a little, @stranahan was, upon information and belief,
the Twitter identity of Lee Stranahan, a journalist for Breitbart.com and a good friend. It was my
understanding that Mr. Stranahan was in Tampa at that time because he was reporting on the
Republican National Convention that year.
25.
Stranahan. Subsequently, I became aware that the Plaintiffor at least a person identifying
himself as the Plaintiff and writing on the Plaintiffs Twitter account at the timepublished what
appeared to be Mr. Stranahans home address and phone number on Twitter. I spoke on the
phone with Mr. Stranahan and he verified to me that it was indeed his true address and phone
number. Based on this information, I therefore reported on my website that the Plaintiff actually
did what the writer known as @OccupyRebellion had threatened to do: to reveal Mr. Stranahans
home address.
26.
I further researched the issue and discovered that the Plaintiffor a person
identifying himself as the Plaintiff and writing on his websitehad previously defended the
writer known as @OccupyRebellions conduct by pointing out that she didnt reveal Mr.
Stranahans home address. By contrast, the Plaintiff had done exactly that. I reported this and
10
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 11 of 14 Document 19-9
expressed to my readers that this provided concrete evidence of the Plaintiffs malicious intent in
revealing the Stranahans home address.
27.
Later I became aware that the Plaintiffor a person writing under his name on his
I later became aware of the video described by Mr. Stranahan in his Declaration.
I have listened to the Plaintiff speak in person and I recognized his voice in the recording. I do
not recall if I reported the existence of this video to my readers.
29.
After I reported on this threatening conduct, the Plaintiffor someone using his
email account and writing under his namewrote to me disputing my interpretation of his
remarks. He did not dispute that he said what I attributed to him. I believe to this day that I have
accurately reported on events. This writer made threats to file what would amount to frivolous
litigation against me. I retraced nothing, and the Plaintiff did not sue me.
11
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 12 of 14 Document 19-9
30.
Additionally, I have no direct, unprivileged knowledge about the facts of this case
or any fact likely to be relevant judging by the claims found in the original complaint and the
proposed amended complaint. I have seen the Plaintiff proclaim on Twitter that he would like to
ask me about the identity of the anonymous writer known as Paul Krendler. I have no
unprivileged information on the subject, or the subject of any other persons identity likely to be
relevant in this case. Further, when I say that I have no unprivileged information on a topic, I am
not implying that I do or do not have privileged information that might be responsive to such
questions. I am only saying that I either 1) know nothing about the topic at all, or 2) know
nothing that isnt subject to privilege.
31.
personality and I have not offered to help Defendants Palmer and Johnson because of my
membership in such non-cult. I have offered to help these Defendants because unlike the
Plaintiff, I believe in freedom of speech and I defend it. As I have said repeatedly, I believe as a
lawyer that there are two things person shouldnt have to pay money to protect: their right to
freedom of expression and their right to be free of invidious discrimination. I have given of my
pro bono time to these Defendants and others in line with those principles. If any religious
fervor is involved it is my belief in American freedom12 and Christian charity.
32.
The Plaintiff also accuses me of having deleted Tweets insulting of the Plaintiff. I
have done no such thing. It is exceedingly rare for me to delete anything I created on the web,
except to correct typographical errors.
12
I have seen foreign writers claim that Americas devotion to freedom of speech is almost
religious in its fervor. I think that is a reasonable assertionwe often call it a God-given
rightand that our devotion is well-placed.
12
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 13 of 14 Document 19-9
I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.
Manassas
(city)
Virginia
.
(state/territory)
s/ Aaron J. Walker
(signature)
13
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 14 of 14 Document 19-9
EXHIBIT J
My name is Sarah Palmer, and I make these statements based upon my own
personal knowledge. I am a resident of North Carolina. I am over 18 years of age, and if called
to do so, I am competent to testify that the contents of this declaration are accurate and true.
2.
3.
Mr. Walker is providing such representation pro bono. Under our representation
agreement, Mr. Walker has agreed to forgo any legal fees related to his time.
However,
Defendant Johnson and I are required to reimburse Mr. Walker for out-of-pocket expenses
related to this litigation such as copying costs and mailing costs.
4.
It would be a great hardship for me if Mr. Walker were not allowed to serve as
counsel. I would have difficulty affording any counsel for pay, and I have not yet found another
pro-bono counsel willing to handle this case.
I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.
Reidsville
(city)
North Carolina
(state/territory)
s/ Sarah Palmer
(signature)
2
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 3 of 3 Document 19-10
EXHIBIT K
WILLIAM SCHMALFELDT,
Case No. 2:15-cv-01516-NJ
Plaintiff,
v.
1.
My name is Lee Stranahan, and I make these statements based upon my own
I am a reporter, working at all relevant times for Breitbart News and for own
From August 27 through August 30, 2012, the Republican Party held its national
convention in Tampa, Florida, nominating Mitt Romney to run for President of the United States.
I attended the event on assignment for my employer Breitbart News, and to be part of the
screening of a film, Occupy Unmasked, that I was featured in as part of my employment with
Breitbart News.
4.
Because the film Occupy Unmasked had been picked up for theatrical distribution,
the screening was public, as was my involvement in it, which included an appearance at a
question-and-answer session about the film.
5.
As a result of my appearance in this film, which criticized the Occupy Wall Street
On August 27, I became aware that a writer who called him or herself
@OccupyRebellion wrote the following on Twitter: "While @stranahan is in Tampa this week,
should Texas rapists be told where to find his wife since he supports the rapes of everyone else?"
I personally viewed the Twitter page for @OccupyRebellion and read the message.
7.
on Twitter. When a Twitter message (called a "tweet") includes someone's "handle" in that
fashion, Twitter sends that message to the mentioned account to appear on what is known as the
"notifications" tab unless the originating account is blocked.
@OccupyRebellion, I received that message in my Twitter account. Further, any person who
subscribed to @OccupyRebellion's Twitter feed by "following" that account saw this threat as
well, and the public at large could see it by viewing this person's Twitter page.
8.
Other threats to me and other people involved in the film were publicized in The
After @OccupyRebellion made this threat, people on both sides of the political
aisle expressed disgust about this rape threat against my wife. Most recognized that whatever
2
they might think of me, there was no excuse for any person to try to terrorize my wife for the
"crime" of being married to me.
10.
My wife Lauren was at home taking care of our four children together, including
an infant.
11.
While I was in Tampa and my wife was at home, I read a piece on the Plaintiffs
(:.11-1)
Xi\ --:-:!-tC
That Twitter message contained a true and correct listing of my address and phone number.
After this, a person working under the Plaintiffs pen name "Liberal Grouch" posted a
YouTube video featuring a slide show serving as a virtual "tour" of my home, using alleged
pictures from my home, narrated by the Plaintiff This video is still available to anyone who
wishes to view it at https://www.youtube.com/watch?v=tY57wadriss. The Plaintiff narrated the
entire thing, and I recognized his voice. At once point the "tour" shows an ordinary bedroom
and an ordinary bed. The Plaintiffs narration states at this point "And that's the bed where Mr.
and Mrs. Stranahan get their business on, if you know what I mean." The next slide showed a
bathroom with two sinks. The Plaintiff continues his narration at this point, saying, "And then
when they are done, they wash their hands and other parts, in separate sinks." Immediately after
that portion of the video, my home address is show via a text "crawl" on the screen, and the
Plaintiff is heard reading this address out loud in his narration.
13.
On another occasion a person writing on the Plaintiff's website and under his
byline decided to focus his attention on me rather than my wife, suggesting I should be raped and
referring to me as "Stranny" (with apologies for the language):
Better idea, Stranny. How about we find out where you are staying and rape
YOU?
Of course, no one would never actually DO that, for fear of getting genital warts
from your filthy, unwashed, unwiped ass. But maybe it would be nice for a prorape asshole such as yourself to understand the fear a woman faces at the concept
of rape.
How many men do you figure it would take to hold you down, Stranny[?]
I bet one could do it.
(Emphasis in original). I have always considered this to be a threat against me, and considered
the publication of my address and attempt to intimidate me from my work as a journalist by
threatening my family. I have also considered his publication of my address as an act facilitating
or completing the rape threat against my wife.
4
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 5 of 6 Document 19-11
I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.
T..:o..e=x=a=s
(city)
(state/territory)
s/ Lee Stranahan
(signature)
UNREPORTED OPINIONS
Provided under E.D. Wis. Civil L. R. 7(j)(2)
Olson v. Bemis Co., Case No. 12-C-1126 (E.D. Wis. April 26, 2013)
Kimberlin v. Walker, et al., Case Nos. 1553, 2099 and 0365 (Md.App. Feb. 2, 2016)
Fleming v. Parnell, Case No. C13-5062 BHS at 8, (W.D. Wash. April 17, 2014)
BACKGROUND
Olson was terminated from his
employment with Bemis on February 3, 2012,
after he sustained a work-related injury. The
Local filed a timely grievance with the
company and pursued
Page 2
Page 3
-1-
ANALYSIS
Defendants argue that Attorney Culp
must be disqualified from representing Olson
in this litigation proceeding because he is
likely to appear as a necessary witness at trial.
Attorneys practicing before this court are
subject to the Wisconsin Rules of Professional
Conduct for Attorneys, which are adopted by
the Wisconsin Supreme Court. General L.R.
83(d)(1); see also Weber v. McDorman, No.
00-C-0381-C, 2000 WL 34237498, *1 (W.D.
Wis. Aug. 11, 2000) ("It is common practice
for federal courts to apply state rules of
professional conduct.").
Page 4
-2-
Page 5
[T]his prohibition applies only
at trial, and a lawyer who may
be prohibited from representing
a client at trial by SCR 20:3.7 is
not prohibited by that Rule
from representing the client in
pre-trial
proceedings.
SCR
20:3.7 also prohibits only the
individual
lawyer
from
representing the client at trial
and the lawyer's firm is not
disqualified by the Rule.
Page 6
that a party is entitled to be represented by an
attorney of his or her choice and that
disqualification is a drastic measure which
courts should hesitate to impose except when
absolutely necessary. Owen v. Wangerin, 985
F.2d 312, 317 (7th Cir. 1993). Because
Wisconsin follows the majority approach to
the attorney-witness rule, as evident from the
State Bar Ethics Committee memorandum
opinion, the Union's motion to disqualify
Attorney Culp is at best premature.
Page 8
The Union also suggests that even if its
only likely that Attorney Culp will be a
witness at trial, it is better for him to step
aside now so as to avoid any delay that would
result from a last minute disqualification. Any
attorney will need time to prepare for trial,
and if Attorney Culp continues to represent
Olson only to be required to step down and
have a new attorney take his place later, the
Union suggests, it will be prejudiced by
having to wait for the new attorney to
familiarize with the facts and evidence, and
prepare for trial. Any such risk can be
avoided, however, by providing clear warning,
as the court does now, that no delays will be
-4-
Judge
-5-
BRETT KIMBERLIN
v.
AARON WALKER, ET AL.
I. BACKGROUND
No one would dispute that Mr. Kimberlin
and the defendants bear a great deal of
animosity toward one another, and their use
of social media has effectively thrown
gasoline on an already well-fueled fire. The
parties have been involved in other litigation,
in Maryland and in other jurisdictions, but we
focus on what brought them together in this
case.
No. 1553
No. 2099
No. 0365
COURT OF SPECIAL APPEALS OF
MARYLAND
September Term, 2014
September Term, 2015
February 2, 2016
Opinion by Nazarian, J.
*This is an unreported opinion, and it may
not be cited in any paper, brief, motion, or
other document filed in this Court or any
other Maryland Court as either precedent
within the rule of stare decisis or as
persuasive authority. Md. Rule 1-104.
Page 2
Brett Kimberlin filed suit against
numerous individuals in the Circuit Court for
Montgomery County, and sought damages
based on allegedly defamatory statements
they made about him. Some, but not all, of his
claims went to trial, but the circuit court
granted judgment in favor of all defendants
after Mr. Kimberlin presented his case-inchief. He appeals that ruling and various pretrial rulings that whittled down the claims
that ultimately went forward. Because we
agree with the circuit court that only two of
Mr. Kimberlin's claims could go to trial, and
that he failed to prove a fundamental element
of those claims once he got there, we affirm.
Page 3
publishing false, defamatory,
and tasteless stories about those
filings as if the allegations were
true, all the time raising funds
from unsuspecting people who
read the stories.
Mr. Kimberlin claimed that the Appellees
falsely portrayed him as "engaging in criminal
activity, being a pedophile, rapist and
domestic terrorist, and engaging in domestic
violence," and he countered that their
-1-
Page 5
But then in a plot twist, Mr. Kimberlin
decided not to testify after allalthough, and
notably, he never suggested that he was
unprepared to testify as a result of the timing
of the judge's ruling. Instead, Mr. Kimberlin
presented the following case: first, he gave a
lengthy opening statement, in the course of
which the Appellees interposed numerous
objections, many of which the trial court
sustained; second, he called and questioned
all the named defendants, which again led to
numerous and often successful objections;
and finally, Mr. Kimberlin called his daughter
(whom we will simply call "Daughter"), and
Page 4
comply with outstanding discovery. The court
then granted the Summary Judgment
Motions in part in favor of all Appellees,
leaving for trial Mr. Kimberlin's claims for
defamation and false light invasion of privacy.
Before trial, however, the defendants
moved again for summary judgment on these
claims. This time, they argued that Mr.
Kimberlin could not testify at trial because he
was a convicted perjurer. (The basis for this
-2-
After
Daughter's
testimony,
Mr.
Kimberlin rested, and the Appellees moved
for judgment. They argued that Mr. Kimberlin
had introduced no evidence of falsity or harm
or malice that could support a claim for
defamation. Mr. Kimberlin countered that his
was a clear case of defamation per se, and
that because the Appellees accused him of a
crime (pedophilia), he was not required to
show specific damages. Although the court
continued to press Mr. Kimberlin to establish
evidence of falsity, Mr. Kimberlin continued
to argue that a case of defamation per se led
to an automatic presumption of harm.
Assume
arguendo
that
pedophilia was a crime and it is
not, even though I said the
plaintiff kept referring to it as a
crime, it's not a crime. Assume
arguendo that it was, there was
absolutely no evidence in this
case of exactly to what the
defendant is alleged to have
done. And so I think the case
falls short of rising to the level
that it should go to the jury. And
for those reason the Court
issues a judgment in favor of the
defendants.
(Emphasis added.)
The path of this case following the trial
court's oral ruling became tortuous, and the
appellate record in this case is, to put it
delicately, a mess. A small measure of
confusion arose from the fact that the circuit
court did not enter a formal judgment
immediately after trial, although that was
cleared up soon enough. The far larger source
was Mr. Kimberlin's decision to file three
separate notices of appeal as the post-trial
paper flew.
Page 6
of evidence in this case that the
statements that were made by
these individuals were false.
Page 7
-3-
Page 9
II. DISCUSSION
Mr. Kimberlin challenges numerous
aspects of the trial court's decision, and we
will take them in slightly different order.1
Overall, our analysis flows from the fact that
Mr. Kimberlin failed to offer evidence that
could prove the elements of his case, most
visibly by his decision not to testify. It's hard
to know whether his testimony alone could
have
Page 10
the dispute." Piney Orchard Cmty. Ass'n, Inc.
v. Piney Pad A, LLC, 221 Md. App. 196, 219
(2015).
Page 11
This last step in the summary judgment
analysis was Mr. Kimberlin's undoing.
Although he claims here that there was ample
evidence to support his claims, he offered
nothing other than allegations at the time of
the hearing. For example, when he first
addressed the court about his own motion for
summary judgment, he stated, "Every single
case [against Mr. Kimberlin] has been
dismissed, nolle prossed, thrown out in some
way, shape, or form. There's been probably a
dozen judges right here in this court, in
federal court, state court, district court, who
have all had to suffer through the things that
these guys have done." This sort of
generalized rhetoric will not suffice. The
pleading he filed in opposition to the
Summary Judgment Motions contained a list
of "lawsuits, peace orders, and criminal
charges" filed against him by the defendants.
He purported to summarize each case
broadly, as in the following:
Motions.
responses
placed in
Appellees
claim.
Page 12
Court's Ruling
9-104
Is
Page 14
has a right to know in terms of harm. The
objection is the manner in which you are
setting out to do that. If these individuals said
that you're a pedophile, the best person to
testify about that is you." (Emphasis added.)
And as to the testimony regarding an
unspecified "courtroom assault" by Mr.
Walker and Mr. Kimberlin's wife's emails, the
trial judge correctly prohibited Mr. Kimberlin
from introducing hearsay evidence, and he
has offered no basis on which we could find
those rulings incorrect.
Page 15
The absence of proof revealed itself most
visibly in the following exchange with the
court, when the trial judge pressed Mr.
Kimberlin to point to evidence that the
Appellees' statements were false:
MR.
KIMBERLIN:
testified?
Who
MR.
KIMBERLIN:
It's
considered false. It's I mean I
don't know what to tell you.
You're asking me to prove a
negative.
I
mean
(Emphasis added.)
Mr. Kimberlin appears to have conflated
two concepts, and argues here, as he did at
trial, that accusing someone of pedophilia
constitutes defamation per se. But that notion
(one that we decline to address) does not
relieve a plaintiff of the initial burden to
prove falsity. That is, in order to plead a
defamation claim under Maryland law, a
plaintiff must allege specific facts establishing
four elements to the satisfaction of the factfinder: "(1) that the defendant made a
defamatory statement to a third person, (2)
that the statement was false, (3) that the
defendant was legally at fault in making the
statement, and (4) that the plaintiff thereby
suffered harm." Piscatelli, 424 Md. at 306
(citations and quotations omitted). This first
element requires proof of a defamatory
statement "that tends to expose a person to
public scorn, hatred, contempt, or ridicule,
which, as a consequence, discourages others
in the community from having a good opinion
of, or associating with, that person." Id.
(citations and quotations omitted). The
second element requires proving falsitythat
a statement "'is not substantially correct.'" Id.
(quoting Batson v. Shiflett, 325 Md. 684, 726
(1992)).
***
Page 16
Page 17
--------
-------Footnotes:
1. Mr. Kimberlin presents the following
issues on appeal:
-9-
On
March
6, 2013, Defendants
counterclaimed
for:
(1)
copyright
infringement
against
Plaintiffs
before
registration; (2) copyright infringement
against Plaintiffs after registration; (3)
violations of the Lanham Act by false
designation of origin, false advertising, and
reverse passing off; (4) violations of
Washington's Unfair Competition Act by false
advertising and reverse passing off; (5)
breach of fiduciary duty by conversion and
misuse of partnership property against
Fleming; (6) breach of fiduciary duty by
concealment of overcharges against Fleming;
(7) breach of the duty of good faith and fair
dealing by conversion and misuse of
partnership property against Fleming; (8)
breach of the duty of good faith and fair
dealing by concealment of overcharges
against Fleming; (9) improper accounting
against Fleming; (10) conversion of
partnership property against Plaintiffs; (11)
tortuous interference with business relations
against
Page 3
Plaintiffs; (12) unjust enrichment against
Plaintiffs; and (13) breach of contract against
MAG ("Def. Fed. Claims"). Dkt. 7.
Page 2
Sports, LLC ("Samson"), collectively referred
to as Defendants. Dkt. 98 at 2; Dkt. 97-2 at 3.
Page 4
these
drawings,
after
Frederickson
transferred them to Samson by written
instrument. Dkt. 84.
B. Disputed Facts
Page 6
was no documentation or explanation for it.
Dkt. 90 at 6. Defendants contend that
Fleming had not been paid because there was
no revenue to distribute and that the $8,000
was an advance. Dkt. 107 at 3. The note on
the front of the check only states "Ramp
Sales." Dkt. 107-3 at 2.
Page 9
The moving party is entitled to judgment as a
matter of law when the nonmoving party fails
to make a sufficient showing on an essential
element of a claim in the case on which the
nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). There is no genuine issue of fact for
trial where the record, taken as a whole, could
not lead a rational trier of fact to find for the
nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (nonmoving party must present
specific, significant probative evidence, not
simply "some metaphysical doubt"). See also
Fed. R. Civ. P. 56(e). Conversely, a genuine
dispute over a material fact exists if there is
sufficient evidence supporting the claimed
factual dispute, requiring a judge or jury to
resolve the differing versions of the truth.
-4-
Page 10
nonspecific statements in affidavits are not
sufficient, and missing facts will not be
presumed. Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 888-89 (1990).
Page 11
2. Legal Standard
Under 17 U.S.C. 106, a copyright owner
"has the exclusive rights":
1. Parties' Arguments
Plaintiffs
assert
that
Defendants'
copyright infringement claims are deficient
because:
(1)
Defendants'
multiple
registrations, altering the content and
publication status of earlier registered works,
revoked and cancelled prior registrations; (2)
Defendants' asserted copyright registrations
are invalid because Defendants filed them
with the intent to block Fleming from using
the drawings; (3) Frederickson's drawings
lack protectable original expression; (4)
statutory damages, enhanced damages, and
-5-
3. Analysis
1. Parties' Arguments
Page 13
Page 12
2. Legal Standard
According to their summary judgment
motion, counterclaims, and other filings,
Defendants allege only two types of claims
under the Lanham Act: reverse passing off
and false advertising. See, e.g., Dkts. 7, 94. To
clarify, Plaintiffs seem to confuse these claims
with the standard claim of trademark
infringement, which they correctly state was
not pled in this case. See Dkt. 109 at 21.
3. Analysis
Under Defendants' reverse passing off
claim, the same issues of fact presented in the
copyright claims exist with regard to the
origin of the goods: who authored the
drawings, who owned the drawings before
September 27, 2013, and who was authorized
to use the drawings after Fleming and Parnell
went their separate ways. In addition, there
are issues of fact about whether any consumer
confusion was attributable to Plaintiffs,
Defendants, or both.
Page 14
Plaintiffs' false designation of origin. See, e.g.,
Lipton v. The Nature Co., 71 F.3d 464, 473
(2d Cir. 1995); Kurtis A. Kemper, Application
of Doctrine of "Reverse Passing Off" Under
Lanham Act, 194 A.L.R. Fed. 175, 3 (2004).
Page 15
IV. ORDER
Therefore, it is hereby ORDERED that:
1. Defendants' Motion for Partial
Summary Judgment (Dkt. 94) and Plaintiffs'
Motion for Partial Summary Judgment (Dkt.
89) are DENIED with regard to Defendants'
federal counterclaims (Def. Fed. Claims 1-3).
Page 16
__________
BENJAMIN
H.
United States District Judge
SETTLE
-8-
day of
, 2016
BY THE COURT
NANCY JOSEPH
United States Magistrate Judge
2
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 2 of 2 Document 19-15