Anda di halaman 1dari 13

MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,


Defendants

PLAINTIFFS REPLY TO DEFENDANT BRETT KIMBERLINS RESPONSE TO


PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST HIM
NOW COMES the Plaintiff, Aaron J. Walker, Esq., and files this Plaintiffs Reply to Brett
Kimberlins Response to Plaintiffs Motion for Partial Summary Judgment Against Him. He
states the following:
1.

In Mr. Walkers Motion for Partial Summary Judgment (Dkt. No. 213), he

pointed out that Mr. Kimberlins answers to interrogatories precluded Mr. Kimberlin from
offering any evidence in his favor. Mr. Walker went on to present evidence in his own favor,
showing that the undisputed evidence demonstrated that Mr. Kimberlin told repeated falsehoods
and made repeated misrepresentations in his Application for Statement of Charges (hereinafter
the Application) in order to induce the Commissioner to wrongfully charge Mr. Walker with a
crime.

Mr. Walker argued that if all of Mr. Kimberlins lies, misrepresentations, and

irrelevancies were removed from the Application, what was left could not support probable
cause. He went on to show that there is no genuine dispute of material fact in regard to

compensatory and punitive damages or the desirability of an injunction, including a prohibition


on activity designed to intimidate Mr. Walker and his family.
2.

In response, Mr. Kimberlin has not presented any evidence showing that there is

any genuine dispute of material factlet alone presenting that evidence in a manner that
conforms to Md. R. 2-501(b). Instead, Mr. Kimberlin tries to play coy, claiming that Mr. Walker
has no evidence of facts that Mr. Kimberlin has already admitted are true and claiming that Mr.
Walker cannot prove that the Application exists or what it says, despite the fact that Mr. Walker
has already given this Court a certified copy of it. Further, Mr. Kimberlin incorrectly claims that
there is no legal basis for an injunction preventing Mr. Kimberlin from intimidating Mr. Walker
and his family (whether related by blood or marriage) or that this Court cannot grant summary
judgment as to damages. Further, he inappropriately pleads for an evidentiary hearing he is not
entitled to and for a third chance to move for summary judgment. When these fallacious
arguments are swept away, it becomes clear that there is no genuine dispute of material fact that
Mr. Kimberlin committed malicious prosecution against Mr. Walker in relation to the July 30,
2013, harassment charges and that Mr. Kimberlin stalked Mary Bravo (Mr. Walkers wife). Nor
is there any dispute as to the measure of damages or the appropriateness of an injunction.
Accordingly, this Court should grant partial summary judgment as to those issues.1

If this motion and the motion against Mrs. Kimberlin are granted, the only open question would
be whether Mr. Kimberlin shared liability with Mrs. Kimberlin for her malicious prosecution in
relation to the May 18, 2015, Application for Statement of Charges.
2

I.
MR. KIMBERLINS RESPONSE DOES NOT CONFORM TO THE REQUIREMENTS
OF MARYLAND RULE 2-501(B)
3.

The first reason why partial summary judgment should be granted against Mr.

Kimberlin is that he has failed to file a response that complies with Md. R. 2-501(b) which states
the following:
(b) Response. A response to a motion for summary judgment shall be in writing
and shall (1) identify with particularity each material fact as to which it is
contended that there is a genuine dispute and (2) as to each such fact, identify and
attach the relevant portion of the specific document, discovery response, transcript
of testimony (by page and line), or other statement under oath that demonstrates
the dispute. A response asserting the existence of a material fact or controverting
any fact contained in the record shall be supported by an affidavit or other written
statement under oath.
There is no effort either to identify with particularity any facts in dispute in Mr. Kimberlins
response or to identify and attach evidence that demonstrates such a dispute. For this reason
alone, this Court can grant Mr. Walkers motion for summary judgment in its entirety.
II.
MR. KIMBERLIN DOES NOT AND CANNOT OFFER ANY EVIDENCE TO DISPUTE
ANY OF MR. WALKERS EVIDENCE
4.

Mr. Kimberlin also does not dispute Mr. Walkers central argumentthat in three

answers to Mr. Walkers interrogatories Mr. Kimberlin has conceded that he has no evidence in
his favor. Specifically, Mr. Walker noted that he presented the following interrogatories to Mr.
Kimberlin:
2.
Identify each person, other than a person intended to be called as
an expert witness at trial, having discoverable information that tends to support a
position that you have taken or intend to take in this action, and state the subject
matter of the information possessed by that person.
3.
Identify each person whom you expect to call as an expert witness
at trial, state the subject matter on which the expert is expected to testify, state the
substance of the findings and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion, and, with respect to an expert
3

whose findings and opinions were acquired in anticipation of litigation or for trial,
summarize the qualifications of the expert, state the terms of the experts
compensation, and attach to your answers any available list of publications
written by the expert and any written report made by the expert concerning the
experts findings and opinions.
4.
If you intend to rely upon any documents, electronically stored
information, or tangible things to support a position that you have taken or intend
to take in the action, provide a brief description, by category and location, of all
such documents, electronically stored information, and tangible things, and
identify all persons having possession, custody, or control of them.
In response to all three interrogatories, Mr. Kimberlin answered, None. In those three answers
he has conceded that there is no ordinary witness he can call in his favor (including himself), no
expert witnesses to call in his favor, and no documents, electronically stored information, or
tangible things he can produce that would support any position he wished to take in this case.
5.

So the only question that remains is whether Mr. Walker has presented enough

evidence in his own favor to show that there was no probable cause. Although Mr. Kimberlin
attempts briefly to try to claim that there is a dispute on some facts, his claims are insufficient as
a matter of law.
A.

There Is No Material Dispute That Mr. Walker Was Prosecuted as the Result of Mr.
Kimberlins July 30, 2013 Charges, That the Prosecution Was Terminated in Mr.
Walkers Favor, or the Contents of Those Charges.
6.

Mr. Kimberlin dishonestly tries to play coy by making a false statement regarding

the record of the case for State v. Walker (III), No. 0D00291914 (Md. Mont. Co. Dist. Ct. 2013).
Specifically, paragraph four of the Defendants Response to Plaintiffs Motion for Summary
Judgment Re Brett Kimberlin and Tetyana Kimberlin and Request for Hearing (hereinafter the
Second Opp. to MSJ) (Dkt. No. 226) states that:
Plaintiff cannot rely on the criminal charge brought by Defendant Brett Kimberlin
because it has been sealed by the Circuit Court in a prior proceeding. Plaintiff has
unsuccessfully attempted to have it unsealed. Without that document, there is no
evidence of any charge.
4

This claim is false. Mr. Walker has not unsuccessfully attempted to have the expungement
vacated.2 His motion is still pending and will likely be granted.
7.

Furthermore, this Court already has sufficient evidence of what happened in that

case. Mr. Kimberlin3 cannot dispute that a prosecution was initiated by him or that it was
terminated in Mr. Walkers favor, given that he admitted as much in the Defendants first Motion
for Summary Judgment and a Hearing (hereinafter the Defendants First MSJ) (Dkt. No. 114).
As stated in Vanhook v. Merchants Mut. Ins. Co., 22 Md.App. 22, 27 (1974), one of the ways to
properly place a fact before the court is by [s]tipulation or concession[,] the Vanhook court
adding that [f]acts conceded or stipulated to be true facts are likewise properly before the
court, in a hearing on a motion for summary judgment.
8.

Mr. Kimberlin has previously conceded that charges were initiated as the result of

his Application in paragraph five of the Defendants First MSJ by stating the following:
First, Defendants requested from the Commissioner that the States Attorney
pursue criminal charges against Plaintiff. The Commissioner approved of these
requests and sent them to the States Attorneys Office to determine if they would
be accepted and pursued.... Citizen complaints cannot be considered criminal
charges until the States Attorney approves them.
Of course he misunderstood the nature of the process. When a citizen files an Application for
Statement of Charges, the Commissioner decides whether charges are issued, and if they are
issued, the States Attorney decides whether to go forward or seek a nolle prosequi. However,
even if Mr. Kimberlin does not comprehend the legal significance of the facts he has admitted to,

As Mr. Walker has told this Court before, the case was expunged on the States motion without
Mr. Walkers consent or knowledge beforehand.
3
Although the opposition is presented as a joint opposition, Mr. Kimberlin is the only person
who can validly argue in his favor, and, therefore, as a matter of style this Reply treats every
argument as Mr. Kimberlins alone.
5

these admissions can be used against him. Further, the Defendants conceded the case ended on a
dismissal following a plea of a nolle prosequi later in the same paragraph, writing that [t]he
States Attorney nolle prossed the charges before taking any action, and a nolle pross is not a
termination in favor of the accused. While the Defendants legal conclusion is incorrect, it is an
admission that charges were filed at Mr. Kimberlins requestafter all, if no charges were filed,
there would be no need to file a nolle prosequiand that the proceeding was terminated in Mr.
Walkers favor.
9.

Indeed, Mr. Kimberlin also conceded that this occurred a second time in the

hearing on the Defendants First MSJ on May 5, 2016 (Dkt. No. 128), when he stated the
following at the beginning of his oral argument:4
Good afternoon, the basic issue here... weve been sued by Mr. Walker for filing
two citizen complaints with the Commissioner against him for harassment
stalking, basically. Those citizen complaints were nolle prossed.
Accordingly, Mr. Kimberlin has conceded facts that show that the first two elements of a claim
for malicious prosecution are present with respect to Mr. Kimberlin: that there was a prosecution
initiated by Mr. Kimberlin and that it was terminated in Mr. Walkers favor.5
10.

As far as proving the contents of the Application Mr. Kimberlin filed against Mr.

Walker to initiate the charges, Mr. Walker has already provided this Court with a certified copy
of it attached to Mr. Walkers Opposition to the Defendants Motion for Summary Judgment and
4

This is Mr. Walkers transcription, based on a review of the audio at that hearing.
Of course, Mr. Kimberlin did not concede the legal conclusion that these facts satisfied the first
two elements, but the case law and the law of this case state that those facts satisfies those two
elements. See, e.g., Hines v. French, 157 Md. App. 536, 852 A.2d 1047, 1057 (2004) (stating
that the mere issuance of a traffic citation that is subsequently dismissed on a plea of nolle
prosequi is sufficient to meet the first two elements of the tort of malicious prosecution). In any
case, Mr. Kimberlin doesnt have to concede the legal conclusion that the first two elements of
the claim for malicious prosecution has been met, only the facts from which that conclusion can
be drawn.
5

Opposition to Request for Hearing (hereinafter Plaintiffs Opp. to MSJ) (Dkt. No. 119). That
certified document provides that proof.
11.

Accordingly, despite Mr. Kimberlin suddenly playing coy with this Court, there is

no question that a prosecution was initiated by Mr. Kimberlin and that it was terminated in Mr.
Walkers favor because Mr. Kimberlin has conceded as much in relation to the Defendants First
MSJ. As for the content of the Application Mr. Kimberlin filed, Mr. Walker has already
provided a certified copy of the document. Therefore, there is no dispute of material fact as that
a prosecution was initiated against Mr. Walker, that Mr. Kimberlin caused this prosecution to be
initiated, that the Application is the same one attached to Plaintiffs Opp. to MSJ, and that there
was a termination in Mr. Walkers favor.
B.

Brett Kimberlin Has Not Demonstrated a Genuine Dispute of Material Fact as to


the Absence of Probable Cause, Damages or the Appropriateness of an Injunction.
12.

Mr. Kimberlin does not present or refer to any evidence in support of his

contention in paragraph seven of his Second Opp. to MSJ that there is a vast material dispute.
Unlike his wife, Mr. Kimberlin does not attempt to claim that his Application is testimony,6 most
likely because he is pretending it doesnt exist. Id. at 4. Even if Mr. Kimberlin did attempt to
present evidence, he is barred by his answers to interrogatories from doing so.7
13.

Further, that leaves undisputed Mr. Walkers assessment of damages, Mrs.

Bravos harrowing tale of Mr. Kimberlins stalking behavior, and the facts supporting the need
6

See Defendants Reply to Plaintiffs Motion for Summary Judgment and Request for a
Hearing (hereinafter the First Opp. to MSJ) (Dkt. No. 195) 9.
7
Further, Mr. Kimberlins Application cannot be considered as evidence of the truth of the
matters asserted therein because of the rule against hearsay, as explained in Mr. Walkers Reply
to Defendant Tetyana Kimberlins Response to Plaintiffs Motion for Summary Judgment
against Her filed simultaneously with this Reply, and Mr. Walker incorporates those arguments
by reference. Further, Mr. Kimberlin still isnt allowed to testify in the State of Maryland
because of his conviction for perjury.
7

for an injunction. In short, Mr. Kimberlin has placed all his eggs in one basketthe hope that he
could pretend that no Application was filed at all, or that Mr. Walker couldnt produce evidence
of it. With the failure of that argument, Mr. Kimberlin has failed to show a genuine dispute of
fact on every remaining issue.
III.
THIS COURT HAS ALREADY RULED THAT IT CAN GRANT AN INJUNCTION
LIKE THE ONE MR. WALKER HAS SOUGHT BARRING MR. KIMBERLIN FROM
INTIMIDATING MR. WALKER AND HIS FAMILY
14.

Mr. Kimberlin also argues that the injunctive relief Mr. Walker has sought is not

available, the Second Opp. to MSJ stating in paragraph five that Plaintiff makes the absolutely
bizarre argument that this Court should grant summary judgment on his request for an injunction
to stop Defendants from stalking Plaintiffs wife, Mr. Kimberlin later stating that such equitable
relief is not available. There are two problems with Mr. Kimberlins argument
15.

First, Mr. Kimberlin misstates the truth about what Mr. Walker is asking for. Mr.

Walker has not asked for an injunction against Tetyana Kimberlin to prevent conduct designed to
intimidate Mr. Walker or any member of his family (related by blood or marriage). He has only
asked for such an injunction against Brett Kimberlin.
16.

Second, the question of whether such injunctive relief is available has already

been decided in this case. In the Defendants Motion to Dismiss the Fourth Amended Complaint
(Dkt. No. 88), Mr. Kimberlin raised the exact same argument, the Defendants writing in
paragraph eight that: The Claim for an Injunction is patently without merit. This Court does not
have the kind of unlimited authority wished upon it by the Plaintiff. When this Court rejected
these arguments (Dkt. No. 108), it became the law of this case that this Court had authority to
grant an injunction precisely like the one described in Mr. Walkers Fourth Amended Complaint,

which included the prohibition against intimidation (see 106.i.).

Accordingly, this legal

argument must fail.


IV.
SUMMARY JUDGMENT CAN BE GRANTED AS TO DAMAGES
17.

Mr. Kimberlin gets weirdly personal in his argument against Mr. Walker in

paragraph six of the Second Opp. to MSJ as follows:


Plaintiff also ask this Court to grant summary judgment on damages, insisting that
this Court impose hundreds of thousands in compensatory damages and millions
in punitive damages. Yes, Plaintiff did go to Yale, but did [sic] not remember in
Civil Procedure 101 that damages are not appropriate relief on summary
judgment.
The quality of ones education doesnt matter on a legal question. The correctness of ones legal
claims is the only thing that matters. On this point Mr. Kimberlin offers no citation for his
assertion, and the case law shows he is incorrect: this Court can award damages on a summary
judgment basis. That is precisely what happened, for instance, in Consolidated Rail Corp. v.
State, 87 Md.App. 287 (1990). In that case, the State of Maryland filed suit against one of its
contractors for failing to properly complete certain roadwork. The State first won a summary
judgment on the issue of liability, and [f]ollowing discovery and a further hearing, the court
granted the States motion for summary judgment in the full amount of the damages previously
determined. Id. at 290. That judgment awarded both the costs of repair and the costs associated
with detouring traffic during the repair. The Court of Special Appeals, in turn, didnt find
anything inherently objectionable in awarding damages on summary judgment. While the Court
of Special Appeals disagreed with the grant of summary judgment with respect to the costs of
detour (based on a failure of evidence), the same court affirmed the award of the costs of repair.
Therefore, this Court can award damages on a motion for summary judgment.

18.

It is true to say that it is rare for damages to be susceptible to determination on a

summary judgment basis. However, it is also rare for a defendant to admit via answers to
interrogatories that he has no evidence to support any position he is taking or intends to take.
Given that there is no procedural bar preventing the award of damages, there is no need for a trial
on the topic of damages.

Rather, with no facts in dispute, this Court can determine the

appropriate level of damages for itself.


V.
MR. KIMBERLIN IS NOT ENTITLED TO AN EVIDENTIARY HEARING OR A
THIRD ATTEMPT TO OBTAIN SUMMARY JUDGMENT AGAINST MR. WALKER
19.

Mr. Kimberlin also seems to think that he is entitled to a full evidentiary hearing.

For instance, paragraph three of the Second Opp. to MSJ states that Defendants will call former
Judge Audrey Creighton as a witness at the hearing. Likewise, his oppositions claim that he
will show there is a genuine dispute of material fact at such a hearing. See, e.g., Second Opp. to
MSJ 7 (claiming that the hearing will allow the Defendants to show that there is no malice and
that there was probable cause.) However, Md. R. 2-501(b) makes it exceedingly clear that the
time to present his evidence of a dispute of material fact is not at the hearing, but in his response
to Mr. Walkers motion:
(b) Response. A response to a motion for summary judgment shall be in writing
and shall (1) identify with particularity each material fact as to which it is
contended that there is a genuine dispute and (2) as to each such fact, identify and
attach the relevant portion of the specific document, discovery response, transcript
of testimony (by page and line), or other statement under oath that demonstrates
the dispute. A response asserting the existence of a material fact or controverting
any fact contained in the record shall be supported by an affidavit or other written
statement under oath.
The response should have already included his allegedly disputed facts and the evidence in
support thereof. A summary judgment hearing isnt the time to produce such alleged evidence; it
should already have been produced. Further, any evidence he wishes to present at such a hearing
10

is improper.

As noted above, his answers to interrogatories foreclose any presentation of

evidence on his behalf.


20.

Further, Mr. Kimberlin believes that he can win his own motion for summary

judgment at this hearing. For instance, the Second Opp. to MSJ 7 states that:
In short, there is a vast material dispute. However, a hearing will allow
Defendants to show that there was no malice and that there was probable cause.
These showings will allow this Court to grant summary judgment in Defendants
favor.
However, Mr. Kimberlin has already attempted to show that the undisputed facts demonstrate
that there was probable cause supporting his charges (Dkt. No. 114), and he has already had a
hearing on the issue (Dkt. No. 128). He has not only failed to make such a showing, his motion
for reconsideration (Dkt. No. 135) has also failed (Dkt. No. 161). What part of no does Mr.
Kimberlin fail to understand? It is inappropriate to give him a third chance to seek summary
judgment, especially given that he has since admitted that he has no evidence in his favor and,
therefore, there is even less evidence he can present in his favor than before: None. It is now
time to see if this Court believes that the undisputed evidence shows that probable cause was
absent, which is what Mr. Walkers motion asserts.
CONCLUSION
21.

In summary, Mr. Kimberlin has presented absolutely no valid argument showing

why partial summary judgment should not be granted. He has presented no evidence of a
genuine dispute of material fact. Instead, he falsely states that there is insufficient evidence on
Mr. Walkers part, apparently forgetting his prior admissions and the certified copy of Mr.
Kimberlins Application that Mr. Walker had previously provided to this Court. Further, Mr.
Kimberlin makes a fallacious argument that this Court cannot grant the injunction sought
ignoring that this Court has already determined that it canand that this Court supposedly
11

cannot grant summary judgment as to damages. Finally, Mr. Kimberlin inappropriately requests
an evidentiary hearing and an opportunity for a second reconsideration of his first motion for
summary judgment. For all of these reasons, partial summary judgment is appropriate, and given
Mr. Kimberlins total failure to cogently answer Mr. Walkers arguments, there is no need for a
hearing. The papers alone make it clear that Mr. Walker is entitled to summary judgment.
22.

Put simply, all the evidence is on Mr. Walkers side. Therefore, there is no need

for this case to go any further regarding these issues, and partial summary judgment should be
granted in Mr. Walkers favor.

WHEREFORE, based on the foregoing, this Court should grant Mr. Walkers Motion for Partial
Summary Judgment against Mr. Kimberlin, with or without a hearing, and provide any other
relief that is just and equitable.

Tuesday, August 16, 2016

Respectfully submitted,

Aaron J. Walker, Esq.


Va Bar# 48882
P.O. Box 3075
Manassas, Virginia 20108
AaronJW72@gmail.com
(703) 216-0455
(no fax)

12

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

Dated:

CERTIFICATE OF SERVICE
I certify that on the
day of
, 2016, I served copies of this
document on Brett and Tetyana Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817.
In accordance with the Courts order of March 10, 2016 (Dkt. No. 111), I have performed such
service by certified mail and will file the green card when it is returned to me.

13