ECF 19 Redacted

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION
WILLIAM SCHMALFELDT,
Case No. 2:15-cv-01516-NJ
Plaintiff,
v.
SARAH PALMER, ET AL.,
Defendants.
JOINT OPPOSITION TO THE PLAINTIFFS MOTION TO DISQUALIFY COUNSEL
(DOCKET #18) AND MOTION TO STRIKE THE SAME
NOW COME Defendants Sarah Palmer and Eric Johnson, by their counsel Aaron J.
Walker, Esq., in the above-styled case for the sole purpose of challenging personal and subject
matter jurisdiction and service of process, without waiving any rights of jurisdiction, notice,
process, service of process, joinder, or venue. They hereby file this Joint Opposition to the
Plaintiffs Motion to Disqualify Counsel (Docket #18) and Motion to Strike the Same and state
the following:
1.
On March 7, 2016, the Plaintiff filed a Motion to Disqualify Defendants [sic]
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
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 1 of 22 Document 19
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.
All three of these
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.
The Rule Against an Attorney Being Involved in a Case Where He is Likely to be a

Witness only Applies to Trials and Necessary Witnesses
3.
First, the Plaintiff argues that the D.C. CODE OF PROFL CONDUCT R. 3.7 bars the
undersigned from serving as counsel. It reads as follows:

(a)
A lawyer shall not act as advocate at a trial in which the

lawyer is likely to be a necessary witness except where:
(1)
The testimony relates to an uncontested issue;
(2)
The testimony relates to the nature and value of

legal services rendered in the case; or
(3)
Disqualification of the lawyer

substantial hardship on the client.
would
work
2
This language is virtually identical to the language found in WIS. CODE
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).
Olson concerned a suit surrounding a collective bargaining
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.
Second, the Plaintiff cannot show that counsel is likely to be a validly-called
witness. At best, the Plaintiff speculates that

it is entirely possible that during the discovery phase of this trial, Plaintiff will
learn more about Mr. Walkers involvement in the alleged defamation by
Defendants, and he could be called as a witness or even be added to the list of
defendants.1
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
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.
So, outside of privileged
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.
Finally, even if counsel was likely to be a necessary witness, disqualification of
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
8.
In Powell v. Alabama, 287 U.S. 45, 68-69 (1932), the Supreme Court expounded
on the usefulness of counsel as follows:

The right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel. Even the intelligent and educated
layman has small and sometimes no skill in the science of law. If charged with
crime, he is incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel he may be put on trial without a proper charge, and
convicted upon incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and knowledge adequately to
prepare his defense, even though he have a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him. Without it, though
he be not guilty, he faces the danger of conviction because he does not know how
to establish his innocence.
While the stakes for these Defendants are not as high and the need is not as dire as they were for
the Scotsboro Boys, the Defendants finances and their right to express themselves freely is on
the line and, without counsel, they risk losing bothdespite the fact that they have done no
wrong. Accordingly, taking away from these Defendants the only pro bono attorney available to
them would be a substantial hardship.
9.
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.
A second reason why the Plaintiff claims disqualification is justified is because
the undersigned allegedly made two misrepresentations in relation to non-party Brett Kimberlin
5
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.
As an initial matter, it is permissible to refer to Mr. Kimberlin as a convicted
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
by-standers,4amounts to terrorism.5
While it is true that the statutes under which Mr.
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
Kimberlin v. White, 798 F. Supp. 472, 474 (W.D. Tenn. 1992)

Kimberlin v. Walker, Case Nos. 1553, 2099 and 0365 (Md. App. 2016) is also relevant on this
point. In that case, Mr. Kimberlin sued the undersigned counsel and three others for allegedly
defaming him as follows: Mr. Kimberlin claimed that the Appellees falsely portrayed him as
engaging in criminal activity, being a pedophile, rapist and domestic terrorist[.] See Exhibit A.
As noted in the Maryland Court of Special Appeals decision, Mr. Kimberlin lost on the issue of
truth.
6
The U.S. Code doesnt appear to have had a statute defining terrorism before 18 U.S.C. 2331
was adopted in 1992.
5
7
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,
writing the following heading VIOLATIONS OF THE ABA MODEL CODE OF

PROFESSIONAL RESPONSIBILITY and then quoting the following alleged rule:
8
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.
As stated in the Preliminary Statement to the ABA Model Code of Professional
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
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
A Tweet is a short message, delivered via Twitter, to the world at large.

This case is the second case styled Schmalfeldt v. Grady, et al.
10
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.
On page 25 of Exhibit 4, the Plaintiff accurately quotes undersigned counsel as
accusing the Plaintiff of racistly insulting the undersigned counsels wife.
By way of
background, undersigned counsel is in an interracial marriage, celebrating more than a decade of

matrimony with an Asian-American woman. Meanwhile, the Plaintiff had the following crude
conversation about counsel and his wife:
(Curse words censored).
Asian American women endure being constantly and falsely
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
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.
On page 12 of Exhibit 4, the Plaintiff accurately quotes the undersigned counsel
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
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.
Finally, the most ridiculous example of supposedly defamatory comments by the
counsel are those which contain jokes to the effect

that the Plaintiff is fat. However, the Plaintiff has
made light of his weight himself. For instance, one
of his many autobiographical books is entitled No
Doorway
Wide
Enough:
2000-2010,
My
Parkinsons Decade. If there is any doubt that this

title is a fat joke at the Plaintiffs own expense,
the cover of the book has been inserted on the right,
and this image is worth a thousand words.10 The
picture on that cover depicts the Plaintiff from
behind.
The Plaintiffs claim that undersigned
counsel defamed the Plaintiff by suggesting he was
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
fat was obviously made in bad faith.

23.
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
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
The DeWalt case is primarily about challenging his parole revocation.

This case was previously discussed in footnote 9.
14
This can be seen by examining, for instance, the First Amended Complaint in Kimberlin v.
National Bloggers Club, et al. (I), Case No. 8:13-cv-03059 (D.Md. 2013) which is Docket #2 in
that case. The caption of the case does not include Twitchy, LLC, but the list of parties includes
Twitchy, LLC. See 25.
15
See, e.g., United States v. Kimberlin, 805 F. 2d 210, 228 (7th Cir. 1986) (detailing how Mr.
Kimberlin was caught at a print store with forged documents and attempted to eat the evidence).
13
15
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
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
See Defendant Walkers Motion to Strike Plaintiffs Oppositions, Notification and

Declaration, Docket #54, pp. 4-5 in Kimberlin v. NBC (I) (outlining how Mr. Kimberlins own
exhibit contradicts his claims).
19
See Second Amended Complaint, Docket #135, at 116 (p. 41) in Kimberlin v. NBC (I)
(repeating the claim, contradicted by his own exhibit, that he received a message from a sheriffs
office saying LEAVE HIM ALONE. DONT GO THERE even though his exhibit contradicts
this claim).
17
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.
With most ordinary people, it is reasonable to assume that if they make an
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
31.
The Declaration of Aaron Walker contradicts Mr. Kimberlins declaration in
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.
Accordingly, the Plaintiffs motion to
disqualify counsel has no basis in law or fact. It is frivolous, and it should be denied.
23
A copy of this order is attached as Exhibit H.

19
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.
20
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.
Tuesday, March 8, 2016
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
21
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
CIVIL L. R. 7(A)(2) CERTIFICATION

In compliance with Civil L. R. 7(a)(2), I certify that no separate supporting memorandum
or other supporting papers except those already attached to this opposition will be filed in
relation to this opposition.
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
22
EXHIBIT A
Case 2:15-cv-01516-NJ Filed 03/08/16 Page 1 of 49 Document 19-1
r
r
r
r
r
r.
r
r
I.
IN THE
COURT OF SPECIAL APPEALS FOR MARYLAND
SEPTEMBER TERM 2014/2015

Nos.
September Term 2014-#1553, 2099
September Term 2015-#365
BRETT KIMBERLIN,
Appellant,
v.
AARON WALKER,
WILLIAM HOGE,
ALI AKBAR,
and
ROBERT STACY MCCAIN,
Defendants.
Appeal from the Circuit Court of Montgomery County

Eric Johnson, Presiding)
BRIEF OF APPELLANT BRETT KIMBERLIN

BRETT KIMBERLIN
8100 Beech Tree Rd
Bethesda, MD 20817
(301) 320 5921
r
r
r
r
r
r
r
r
L
TABLE OF CONTENTS
STATEMENT OF THE CASE
QUESTIONS PRESENTED FOR REVIEW
STATEMENT OF FACTS
ARGUMENT
I.
II.
III.
IV.
V.
COURTS ARTICLE 9-104 IS UNCONSTITUTIONAL

AND THE LOWER COURT'S FAILURE TO FIND IT
UNCONSTITUTIONAL DEPRIVED APPELLANT OF
DUE PROCESS, EQUAL PROTECTION, AND
MEANINGFUL ACCESS TO THE COURT
THE TRIAL JUDGE ERRED ON THE LAW AND THE
FACTS WHEN RULING THAT APPELLANT DID NOT
PROVE DEFAMATION AND FALSE LIGHT
THE TRIAL COURT INVADED THE PROVINCE OF THE
JURy AND FAILED TO FOLLOW MARYLAND LAW
REGARDING DIRECTED VERDICTS
THE TRIAL COURT PREJUDICED APPELLANT BY
DEPRIVING IDM OF THE RIGHT TO PUT ON
EVIDENCE TO PROSECUTE HIS CASE
JUDGE MCGANN PRETRIAL IMPROPERLY
DISMISSED
THREE CLAIMS ON APPELLEES'
MOTION TO DISMISS
20
23
31
32
33
CONCLUSION
34
35
r
r
t
r
l
r
\
r
r
r
r
r
r
r
r
L
r
r
TABLE OF CITATIONS
Cases
American Stores v. Byrd, 181 A2d 333 (Md. 1962)
26
Batson v. Shiflett, 325 Md. 684 (1992)
24
Baufiled v. Safelite Glass Corp, 831 F. Supp. 713 (D. Minn. 1987)
27
Bochan v. La Fontaine, 68 F. Supp. 2d 692 (D. ED Va. 1999)
27
Brown v. Farkas, 511 NE 2d 1143 (Ill. 1986)
26
Bouie v. Rugged Wearhouse, Inc., 2007 WL 430752 (D. Md. 2007)
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
Dorszynski v. United States, 418 U.S. 424 (1974)
Faretta v. California, 422 U.S. 806 (1975)
21
Farnum v. Colbert, 293 A2d 279 (DC 1972)
26
Geschwendt v. Yoe, 174 Md. 374,381, 198 A. 720651 (1938)
31
Hanrahan v. Baltimore, 114 Md. 517,535 (1911)
31
Haskins v. Bayliss, 440 F.Supp.2d 455,461 (D. Md. 2006)
26
Hearst Corp. v. Hughes, 297 Md. 112, 125, (1983)
26
Jordan v. State, 591 A.2d 875 (Md. 1991)
22
Kilpa v. Board of Education, 54 Md. App. 644 (1983)
30
Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181 (1963)
31
Longebehn v. Schoenrock, 727 NW 2d 153 (Minn, CA,2007)
25
Mazeer v. Safeway, 398 F. Supp. 412 (D. Md. 2005)
29
Miles v. Ramsey, 31 F. Supp. 2d 869 (D. Co. 1998)
27
Myers v. State, 496 A.2d 312 (Md. 1985)
21
Plitt v. Greenberg, 242 Md. 359 (1966)
31
Pettitt v. Erie Insurance Exchange, 117 Md. App. 212 (1997)
19
r
r
r
r
r
r
r
r
r
r
I
Pollitt v. Brush Moore Newspapers, 136 A2d 573 (MD 1957)
26
Rock v. Arkansas, 483 U.S. 44 (1987)
21
Rosen v. United States, 245 U.S. 467 (1918)
22
Samuels v. Tschechtelin, 763 A.2d 209 (Md. 2000)
26
Shaprio v. Massengill, 105 Md. App 743 (1995)
18
Smack v. Jackson, 238 Md. 35,37 (1965)
31
Smith v. Bernfeld, 226 Md. 400 (1961)
31
Smith v. Danielczyk, 928 A2d 795(Md. 2007)
26
Wesko v. GEM Inc, 272 Md. 192 (1974)
34
Washington v. Texas, 388 U.S. 14 (1967)
22
Womack v. Eldridge, 215 Va. 338 (1974)
34
Statutes and Rules and Other Authorities
Md. Rule 9-104
pasSIm
Md. Rule 5-601
23
Md. Rule 5-609(b)
23
Md. Code 3-1503(b)(1)
23
18 U.S.C. 5005-26
18 U.S.C. 5010(b)(2)
2012 House Bill 926
21
2012 Senate Bill 673
21
Black's Law Dictionary 5th Ed, West 1970
27
l _
r
F'
I
l
11
FW1
r
r
r
r
r
r
r
r
r
r
I
r
r
f5l
I
STATEMENT OF THE CASE

Appellant Brett Kimberlin filed a complaint for damages against five
individuals in Montgomery County Circuit Court, alleging defamation, false light,
intentional infliction of emotional distress, abuse of process, conspiracy to abuse
process, stalking, harassment and malicious prosecution. RE-A.
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.)
However, after a full
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
the motion was ruled on by Judge Richard 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 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.
QUESTIONS PRESENTED FOR REVIEW

1. WHETHER COURTS ARTICLE 9-104, WInCH PROHIBITS
ANYONE CONVICTED OF PERJURY FROM TESTIFYING IN ANY
MARYLAND COURT, IS UNCONSTITUTIONAL AS A VIOLATION
OF THE FIRST AMENDMENT'S GUARANTEE TO MEANINGFUL
ACCESS TO THE COURTS, THE FIFTH AMENDMENT'S DUE
PROCESS CLAUSE, AND THE FOURTEENTH AMENDMENT'S
EQUAL PROTECTION, UNDER BOTH THE UNITED STATES AND
MARYLAND CONSTITUTIONS, AND OTHER ARTICLES OF THE
UNITED STATES AND MARYLAND CONSTITUTIONS.
r
r
r
r
r
r
2. WHETHER THE CIRCUIT JUDGE ERRED IN illS RULING FOR A

DIRECTED VERDICT ON THE DEFAMATION AND FALSE LIGHT
COUNTS.
3. WHETHER THE CIRCUIT COURT JUDGE ERRED IN NOT
FOLLOWING THE LAW WITH REGARD TO illS ORDERING A
DIRECTED VERDICT, RATHER THAN ALLOWING THE JURy TO
ISSUE A VERDICT.
4. WHETHER THE TRIAL JUDGE EXHIBITED PREJUDICAL
CONDUCT IN THE CASE THAT DEPRIVED APPELLANT OF A
FAIR TRIAL.
5. WHETHER THE CIRCUIT COURT ERRED IN DENYING
PRETRIAL APPELLANT'S CLAIMS FOR ABUSE OF PROCESS,
CONSPIRACY AND INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS.
STATElVIENT OF FACTS
Appellant Brett Kimberlin filed a complaint for damages against five
individuals in Montgomery County Circuit Court, alleging defamation, false light,
process, stalking, harassment and malicious prosecution. RE-A.
r
I
r
1_
intentional infliction of emotional distress, abuse of process, conspiracy to abuse

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.)
However, after a full
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
2
i
r
r
r
r
r
r
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
Appellant Brett Kimberlin is a father, husband, composer and director of a

Maryland based non-profit called Justice Through Music, that works with bands
and musicians worldwide to promote pluralism, tolerance and progressive values.
Because of Appellant's work, in 2011, he became the focus of a reign of terror by
a group of conservative extremists headed by the late Andrew Bretbart, who, in
2009, famously destroyed the national community organization ACORN through
the use of edited videos secretly recorded at ACORN offices in Baltimore,
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
defamation. In November 2011, at a trial before Judge Richard Jordan, Appellant

won a judgment against Mr. Allen for defamation, which included injunctive and
monetary relief.
i
I
Aaron Worthing, who was well known online as the publisher of the antiMuslim "Everyone Draw Mohammed" blog, was outraged by the judgment and
I
I
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
r
L .
(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
rmq
I
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
3
r
r
r
r
r
r
\c
for being the publisher of the Muslim hate blog. 58, 66
After the hearing, Mr.
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
Robert Stacy McCain to launch an online campaign called "Everybody Blog
F'
I
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
\.
I. .
r
r
r
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
I. .
F'
I
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.
They then stalked Appellant's wife, contacted her,
offered to pay her money to lie about Appellant, launched a fundraising campaign
I
r
i
r
r
which raised thousands of dollars to "save" Appellant's wife, and foisted an

attorney on her to represent her in family law proceedings.
Appellant's wife told Appellee's Walker and Hoge that she did not want their
money, their assistance, their lawyer or their fundraising.
r
r
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
rm
i
I
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,
August 28, 2013-Bethesda Gazette-Comments believed to be written or

directed by Defendant Walker under one or more names-Brett...committed
rape
August 15, 2013-Vile, Brett Kimberlin's Manipulation of His Daughter
August 12, 2013- Brett Kimberlin is an out-and-out pedophile
August 6, 2013-The Pedophile Brett Kimberlin's "Brass Knuckle Defense"
August 5, 2013-So Why is the Pedophile Brett Kimberlin Mad at Us
r
r
il
r
r
William Hoge-Hogewash and Twitter @wjjhoge
fi!W1I
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.
6
r
r
r
r
r
r
r
r
r
r
r
r
r
r
iL
r
r
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
August 13, 2013-Twitter-We're about to raise some money for an abused

immigrant trying to escape #BrettKimberlin.
August 9, 2013-Twitter-pointed out Brett Kimberlin's pedophilia
July 31, 2013-Twitter-Pedophile and terrorist bomber #Brett Kimberlin
July 31, 2013-Twitter- Police,
and everyone who has written
seriously on the matter believe that #BrettKimberlin killed a grandma to
sleep with a 10 yr old.
July 31, 2013-Twitter-#Brett Kimberlin has no moral equivalent this side of
Satan.
July 31, 2013-Twitter-#BrettKimberlin is a pedophile.
July 31, 2013-Twitter-So we've uncovered #BrettKimberlin's big secret:
he's a pedophile with other pedophiles around his children!
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
r
!iit
1
7
r
r
r
r
r
L
r
r
r
r
rL
r
r
L
r
r
j
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)
r
8
r
r
r
r
r
r
r
r
r
r
r
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).
When Appellant reached that milestone and requested the
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
inconsistent rulings. Finally, once Appellant was served with Interrogatories by
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
9
r
r
r
r
r
r
r
r
r
r
r
r
r
r
r
Fl
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.
However, he refused to make a formal pretrial ruling,
instead leaving it to the trial judge.

THE COURT. I know ifs statutory. I'ln not sure the statute is
constitutional. That somebody who was convicted of perjury 40 years
ago can never testify ever again, no matter what claim he brings, or his
(sic) claim is brought against him.? I think that's a highly suspect
statute, in all honesty. I know that hasn't been raise, but I mean, if Mr.
Kimberlin were sued for an automobile accident and that statute would
seen to say that he couldn't say, hey, I had the green light. He just has
to sit back and let the other side tell their story. If he were charge with
a crime, he couldn't testify in his own defense. I have to say the statute
is remarkable. I can understand its existence. I have to highly question
that that would be found constitution (sic) if challenged.
[RE-E at page 6]
On the first day of trial. Appellees again asked the judge to prohibit
Appellant from testifying and Appellant asked the judge to find the statute
unconstitutional. After a hearing, the judge refused to find it unconstitutional
but ruled that Appellant could testify. By that point, literally minutes before
testimony was to begin, Appellant was wholly unprepared to take the stand.
Judge l\'lcGann's Pretrial Rulings Dismissing Several Claims
Appellees filed a pretrial motion to dismiss all the claims, which was
heard by Judge McGann on July 1, 2014.
He ruled that the defamation and
false light claims were Appellant's "money counts" but over Appellant's
objection, dismissed four other claims-abuse of process, conspiracy to abuse
process, malicious prosecution, and infliction of emotional distress.RE-B.
r'
!
10
r
r
r
r
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
r
r
regarding rape, pedophilia
rL
allow her to testify at that time.
of defamation and false light. Here are some of the statements and rulings by
r
r
r
r
L
r
r
false light. Appellees objected to Appellant
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
the trial judge with respect to that witness.
She's not a party. 41

But where is the segue? How does it COlUlect to these
defendants? 42
And what is she going to testify that any of these men did
to her? 43
I mean she can't just get up there and testify about what
was going on in the family or any of that because first of
all, how do you COlUlect that to - it's like saying you sat
next to somebody that had a cold and you caught a cold.
44
11
r
r
r
r
r
r
r
r
r
r
r
r
r
L
r
L
r
l
Well my question still is how does your (sic) testify to

[falsity of pedophilia] 45
She can t testify. 47
No one is doubting [harm] but you have to understand
something, you are the party in this case. not your
daughter. She's not a
here. 48
She is not a party. 50
Sir, but you've got to understand something. We have
rules here. You can't just bring people in to testify when
they A, they didn't witness anything that they're
competent to testify about and B, she is not a party to this
lawsuit, so even if they did harm her as it were .....50
Well, I don't even reach that. I mean reach, I don't know
what you"re going to ask her, but I'ln telling you you're
risking putting this little girl, your daughter on the witness
stand and having her testimony not being admitted.
Because what you're telling the Court that
going to
testify to, she's not cOInpetent to testify to fonn a legal
point of view. A lay witness can't come in here and say
somebody suffered from depression. 52
Mr. Kimberlin: She certainly has a right to testify about
my character (md my character as a father .... my
reputation is at issue. 52
The Court: Well, you don't get to put on the character
witness first before you take the stand.... 53
See you're locked in on your argument and you seem to
think that the Court is against you. The Court is not. The
Court is making sure everybody plays by the rules. If you
were allowed to do what you want to do, a defendant in
any case or a plaintiff could come in the court and not
testify, not do
but just put character evidence up
there. That is expressly prohibited by the rules of
evidence. You have to put your character at issue. ....
[She can't testify] if
going to ask her about your
character.... Now if you put your character as issue and
you want to put on a witness to say that he's a good
father, he's this or that, fine. But you don't get to do that
first. That" s just the rules of evidence. Otherwise a party
could COlne into court, just bring a bunch of character
witnesses and then rest. That's the reason for the lule.
So I'm not telling you she can' t testify I'm telling you
she testify in that order. 53-4
12
r
r
r
r
r
r
r
r
r
r
r
r
r
r
r
L
r
r
r
iL
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
13
r
r
r
r
r
r
r
r
r
r
r
r
r
r
Q. Okay, you have a Twitter accolIDt, tight?

A. Uh-huh....
Q. How Inany approximately tweets have you made about me in the past 2 Y2
years?
A. I honestly don't know.
Q. Would it be more that 1,000'1
A. Probably.
Q. Would it be more than 5,000?
A. I don't know. 79 ...
Q. Have you ever called me a pedophile?
A. I have said that I believe based on the evidence that you are.
Q. Have you published blog posts that call me a pedophile?
A. Yes.
Q. Have you published tweets that call me a pedophile?
A. Again, based on the information I have I have called you a pedophile.
Q. How many blog posts do you think you have published that say I'm a
pedophile?
A. I don't know.
Q. One? 80
A. Maybe six, I don't know.
Q. How many tweets do you think you have published (sic) said I'm a
pedophile?
A. Maybe 30....
Q. Okay, now in the thousands of tweets that you've made about me, are
there positive tweets or are they all negative?
A. . .. I can' t think of the last time I said something that would tend to put
you in a good light....
Q. Okay. I" going to hand you Plaintiff's Exhibit 8A. It appears to be a blog posted about you, okay.
Q. Now what is the title of that blog post'?
A. Brett Kimberlin is a pedophile. 82 ...
Q. And could you tell the jury what the title of that [Exhibit 9] is?
A. The Pedophile Brett Kimberin' s hBrass Knuckle Romance" end quotes.
Q. Dh-huh, and on Twitter you mentioned that you read a lot of tweets about
me. Are you fmniliar with the name that is used on the internet called Pedo
Bear?
A. Yeah, I've heard of it.
Q. Okay, can you tell the jury what a Pedo Bear is?
A. It's a darkly comic cartoon character. . .. it's just they use it to depict
something as a pedophile.... But it is the character is supposed to be this evil
pedophile ....
Q. SO have you ever used that graphic on your to tweet or on your blog?
14
r
r
r
r
r
r
r
r
r
r
r
r
r
r
(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
i
!
15
r
r
r
r
r
r
r
r
r
r
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
16
I
r
r
r
r
r
r
r
r
r
r
r
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
r
I
17
r
r
r
r
r
r
r
r
r
r
r:
r
L
word 'pedophile" to cast Appellant as a pedophile. 208-9.

Appellees Move For Directed Verdicts
At the close of testimony, the Court accepted the exhibits Appellant had
introduced into evidence, 241. The Appellees then moved for a directed verdict
arguing that Appellant failed to show that they defamed him or portrayed him in
a false light. They argued that Appellant had not provided a 'single shred of
evidence of the falsity of the defamation charge of the false light charge," and
no evidence of harm or malice, and no showing that Appellant's reputation was
hanned as a result of the statements by Appellees. 242-3.
Appellant argued that under Shaprio v. Massengill, 105 Md. App 743 (1995),
accusing someone of a crime or sexual misconduct constitutes per se
defamation. In fact, damages are presumed and the statements are considered
false and defamatory per see
244, 248 He said that the Appellees called him a
pedophile, said he engaged in sex abuse, posted his face superimposed on a

Pedo bear graphic, and repeated this "htmdreds of times if not thousands." 245
He said that he attempted to have his daughter testify to hann, reputation, public
scorn.. hatred, contempt and ridicule but the Court would not allow that
testimony. He said that the jury should make the findings as to the elements of
defamation and false light, including falsity and the amount of damages. 256.
The trial court then stated the following:
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?
"
18
r
r
r
r
r
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
The Trial Court's Ruling Directing Verdicts In Favor Of Appellees

The trial judge granted the Appellees' motion for directed verdict. First, he
ruled that there is "not one scintilla of evidence in this case that the statements
that \vere made by these individuals were false." 266 ..."There was no
r
iI
testimony that they were false."

Second, he stated that there was no per se defamation because being a
pedophile "is not a crime in Maryland or in any other state that I am aware of."
267.
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.
19
r
r
r
r
r
r
r
r
r
I-
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
COURTS AND JUDICIAL PROCEEDING ARTICLE 9-104 IS

UNCONSTITUTIONAL, AND THE LOWER COURT'S
FAILURE TO FIND IT UNCONSTITUTIONAL DEPRIVED
APPELLANT OF DUE PROCESS, EQUAL PROTECTION, AND
:MEANINGFUL ACCESS TO THE COURT
Court's Article -104 states: hA person convicted of perjury may not testify."
There are no qualifiers or exceptions to this nde-it is categorical. It is
applicable to plaintiffs, defendants, witnesses and victims alike. This rule is
therefore unconstitutional as a denial of access to the courts, due process, equal
protection and victims' rights.
In the instant case, the Appellees invoked the
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
20
r
r
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
r
i
r
r
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.
Rule 9-104 is Unconstitutional and Conflicts With Many Other
r
r
r
r
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
21
r
r
r
r
r
r
r
r.
r
r
r
r
l
heard and to offer testimony: ...

See also Washingtoll_v._Texas,_388 U. S. 14 (1967) (lilt was thought that if
two persons charged with the same crime were allowed to testify on behalf of
each other, .. each would try to swear the other Ollt of the charge.' This rule, as
well as the other disqualifications for interest, rested on the unstated premises
that the right to present witnesses was subordinate to the court's interest in
preventing perjury, and that erroneous decisions were best avoided by
preventing the jury from hearing any testimony that might be perjured, even
if it were the only testimony available on a crucial issue. ")
The Court of Appeals of Maryland has applied Rock in Jordan v. State, 591 A2d
875 (Md. 1991) (the fundamental constitutional right of a criminal defendant to
testify in his own defense is deeply entrenched in our modem day jurisprudence).
Under Rock, Rule 9-104 is unconstitutional because it deprives a criminal
defendant previously convicted of perjury of the right to testify. But the many
principles discussed in Rock also apply to civil cases such as .the instant case. If a
civil plaintiff were not allowed to testify, he would be deprived of meaningful
access to the courts as guaranteed by the First Amendment, compulsory process,
due process as guaranteed by the Fifth Amendment, and equal protection as
guaranteed by the Fourteenth Amendment. Moreover, the jury would not be able
to have the necessary information to arrive at the truth. See Rosen v. United States,
245 U.S. 467, 471 (1918) ("[T]he conviction 'of our time [is] that the truth is more
likely to be arrived at by hearing the testimony of all persons of competent
understanding who may seem to have knowledge of the facts involved in a case,
leaving the credit and weight of such testimony to be determined by the jury or by
the court ....") Additionally, it would violate Maryland Article 19, because it
would in effect leave him with no remedy under the law. Cf. "That every man, for
any injury done to him in his person or property, ought to have remedy by the
rt
course of the Law of the land, and ought to have justice and right, freely without
fwt
I
r'
i
I
22
r
r
r
r
r
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.
Rule 9-104 in effect nullifies those
statutes and rules.

In the instant case, Appellees have used Rule 9-104 as a grant of immunity to
commit wholesale torts against Appellant and file malicious litigation against him
because Appellant Catlllot meaningfully defend against the torts or the litigation
due to his 40 year old juvenile perjury conviction. In the instant case, Appellant
repeatedly tried to get pretrial rulings on the constitutionality of Rule 9-104 so he
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.
r
I
I
23
r
r
r
r
r
r
r
r
r
r
r
r
r
r
r
r
r
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).
Appellees wronged Appellant by defaming him through false
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
24
r
r
r
r
r
r
r
r
r
r
r
r
r
L
r
rL
r
r
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
25
r
r
r
r
that calling a person a pedophile could be understood by a reasonable

person to be anything but defamatory per see [at 159]
Maryland law states that in the case of words or conduct actionable as
defamation per se, "the injurious character of the words is a self-evident fact of
common knowledge of which the court takes judicial notice and need not be
pleaded or proved." Haskins v. Bayliss, 440 F.Supp.2d 455, 461 (D. Md. 2006);
Shapiro v. Massengill, 105 Md. App. 743 (Md. 1995); Samuels v. TschecJztelin,
763 A.2d 209.. 244-45 (Md. 2000).
r
r
r
r
r
r
r
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
person is a thief is defamatory per se): American Stores
V.
Byrd, 181 A2d 333
(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
795(Md. 2007)(per se defamation to impute commission of a crime for which a

person might be indicted and punished); Pollitt
A2d 573 eMD 1957) (same); Farnum
V.
V.
Brush Moore Newspapers, 136
Colbert, 293 A2d 279 (DC 1972) (same).
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).
26
r
r
r
r
r
r
r
r
r
r
rl
r
r
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
in their many published statements and utterances were intentional accusations of

crimes-Le., sex with children. In fact, the Appellees specifically stated that they
wanted Appellant arrested and prosecuted for sexual assault of a child, even
27
r
r
r
r
r
r
r
r
r
r
r
r
r
r
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.
Despite that, the trial court erroneously ruled that
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
28
r
r
r
r
r
L
r
r
r
r
r
r
r
r
r
r
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.
Appellant Provided Overwhelming Evidence Of False Light Invasion of

Privacy
Appellant asked Appellant Walker the following question and got a candid
answer:
Q. Okay. now in the thousands of tweets that you've made about me, are there
positive tweets or are they all negative?
A. ... I can't think of the last time I said something that would tend to put
you in a good light.... 81.
To prove a claim of false light invasion of privacy, a plaintiff must show that 1)
publicity was given to a matter concerning another that places the other before the
public in a false light; 2) the false light in which the other person was placed
would be highly offensive to a reasonable person; and 3) the actor had knowledge
of or acted in reckless disregard to the falsity of the matter. Mazer v. Safeway,398
F. Supp. 2d 412,431 (D. Md. 2005).
There are four different kinds of invasions of privacy: (a) unreasonable
intrusion upon the seclusion of another, (b) appropriation of the other's name or
likeness, (c) unreasonable publicity given to the other's private life, and (d)
publicity which unreasonably places the other in a false light before the public.
The text writers and authorities make it clear that an invasion of the right of
privacy by anyone of the above four courses of conduct may give rise to a cause of
action and, on occasion, there may be an overlapping or concurrent invasion by
any or all of the above means working toward the injury of the plaintiff.
29
r
r
r
r
r
r
r
r
r
r
r
r
r
r
Restatement Second, 652A, Comment d. Cited in Kilpa v. Board of Education, 54

Md. App. 644 (1983).
The Appellees testified that they appeared at court hearings involving

Appellant's private family matters, that they inserted themselves in those private
family matters, and that they recklessly published statements that placed Appellant
in a false light that would be highly offensive to a reasonable person. Several of
the Defendants testified that based on those court hearings, they published
statements calling Plaintiff a pedophile, rapist and abuser.
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:
Q Have you ever published a graphic of a Pedo bear with my face

superimpose on it?
A. Yes.
Q. Okay, how many times do you think, just roughly, you've done this?
A. I don't know, many more than a dozen. (Tr. at 89).
Moreover, the Appellees had knowledge of and acted with reckless disregard
to the falsity of these matters. Appellees knew that Appellant was never arrested,
prosecuted or sentenced for any sex crimes. They knew that no person in an
official capacity bought into their false narratives about sex abuse, perjury or any
other nefarious, unethical or criminal activity. They knew that Appellant's wife
and daughter had told Appellees that their accusations were untrue. Moreover,
30
r
r
r
r
r
r
r
r
r
r
r
r
r
these Internet bloggers never once contacted Appellant to ask him about their
accusations.
Instead, they repeatedly published their articles and tweets, and
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
31
r
r
r
r
r
r
r
r
r
r
r
r
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
Batson v. Sh(tlett, 325 Md. 684, 722-23 (l992)(defatnatory statetnents expose a
32
r
r
r
r
r
r
r
r
r
r
r
r
r
r
r
r
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).
The judge would not allow Appellant to present complete evidence about the
courthouse assault by Appellee Walker, which would have shown that the
Appellees defamed Appellant by accusing him of forging hospital records and
filing false charges against Appellee Walker. 71 The judge would not allow
Appellant to present evidence about the employment termination of Appellee
Walker, which would have shown that Appellees defamed him by accusing him of
causing that termination. 76 The judge would not allow Appellant to present any
evidence of emails sent to Appellees Walker and Roge from Appellant's wife
stating that the things they were saying about Appellant were untrue and should be
deleted from the Internet. 119
In sum, the judge's rulings limiting the evidence Appellant could introduce
prejudiced him and deprived him of a fair trial. Incredibly, the judge later ruled
that Appellant had not proven his case because he did not present sufficient
evidence, yet the judge had prevented relevant, competent and powerful evidence
from being entered into evidence. This constitutes reversible error.
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
33
r
r
r
r
r
r
r
r
r
r
r
r
r
l
Appellant deep emotional distress with their publications. Judge McGann

therefore erred in dismissing these claims. Cf. Wesko v. GEM Inc, 272 Md. 192, 19697 (1974), the
"cases make it clear that for an action for malicious use of civil process, and
such is the issue here, to succeed, several elements must co-exist: (i) the
institution of civil proceedings (ii) without probable cause (iii) with malice
(iv) that the proceedings have terminated in the plaintiffs favor, and (v) that
damages were inflicted on the plaintiff by seizure of his property or other
special injury."
In Batson v. Shiflett, 325 Md. 684, 733 (Md. 1992), the court defined
intentional infliction of emotional distress as:
{n(l) One who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm:' In
comment (i) to the Restatement it is expressly stated that this rule also covers a
situation where the actor knows that distress is certain, or substantially certain, to
result from his conduct. In order to satisfy the element 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.'"
In Womack v. Eldridge, 215 Va. 338 (1974), the defendant deceitfully obtained
the plaintiffs photograph for the purpose of permitting a criminal defense lawyer to
show it to the victims in several child molesting cases in an effort to have them
identify the plaintiff as the perpetrator of the offenses, even though he was in no
way involved in the crimes. While the victims did not identify the
he was
nevertheless questioned by the police and called repeatedly as a witness. As a result,

plaintiff suffered shock, mental depression, nervousness and great anxiety as to
what people would think of him and he feared that he would be accused of
molesting the boys. The court, found infliction of emotional distress: "Most of the
courts which have been presented 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 causes another severe emotional distress ...."
In the instant case, Appellees engaged in outrageous and extreme conduct by
falsely publishing the defamatory statements accusing him of heinous crimes and
r
j
34
r
r
r
r
r
r
r
r
r
r
r
r
nefarious conduct, and demanding that he be investigated, arrested and imprisoned

for pedophilia, rape, murder, and other serious crimes. This abhorrent conduct has
kept Appellant under siege for years, and caused extremists to come to his home,
take pictures of him and his daughter, and make threatening calls to him, his family
and his neighbors. No person in a civilized society should be made to endure such
conduct.
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.
Brett Kimberlin
STATEMENT AS TO TYPEFACE: The font used in this brief is Times

New Roman with 13-point type and proportional spacing.
I certify that I emailed a copy of this appeal brief to Attorney Patrick Ostronic
and mailed a copy to Appellant Ali Akbar at 8116 Heritage Place, Ft. Worth, TX
76137 this 3pt day of July, 2015.
Brett Kimberlin
35
r
r
r
r
r
r
r
APPENDIX A
Testimony in Maryland Senate in Support of
of Rule 9-104
Testimony of Senator Joseph Getty

Testimony of Maryland Coalition Against Sexual Assault
Testimony of Rape Crisis Intervention Service of Carroll
County
Testimony of Maryland Crime Victim's Resource Center
r
r
r
r
i
r
!
r/
r
r
r
r
r
r
r:
r
r
r
r
r
r
r
r
r
JOSEPH M. GElTY
rth Ugis/ntil Distria
Baltimore and Carroll C'..ountics
Jamcs Senate Office Building

11 Bladen Streer. Room 401
Annapolis, Maryland 21401
Judicial Proceedings Committee
Joseph.Geny@senate.state.md.us
410-841-,683 . 301- 8SB-,683

8oD-492.-71U &to 3683
Reapportionment and
Redistricting Committee
Special Committee on Ethics Reform
Joint
Ethics
lnmsparency and Open Government
The Senate of <Maryland

ANNAPOUS, MARYLAND 2.1401
TESTIMONY OF SENATOR JOSEPH M. GETTY

BEFORE THE
HOUSE JUDICIARY COMMITTEE
SENATE BILL 673
.COURTS AND JUDICIAL PROCEEDINGS - PROIllBITION AGAINST TESTIMONY BY
CONVICTED PERJURER - REPEAL
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
The Maryland House of Delegates

6 Bladen Street. Room 3U
Health and Government

Operations Committee
800-491-712.2. Ext. 32.00
Annapolis. Maryland 1J4OJ

410-841-32.00
Fax 410-841-3349
Susan.Krebs@house.state.mclus
Health Facilities &
Occupations Subcommittee
Public Health at Long Term
Care Subcommittee
'The <Maryland House ofVelegates

ANNAPOUS, MARYLAND 2141
DB 926- Courts and Judicial Proceedings - Testimony by Convicted

Perjurer
March 6, 2012
WHAT THIS BILL DOES
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.
r;
r
r
r
r
r
r
Amendment as Finalized 14:36:22 on 08 MAR 12

SB067S/628170/1
BY:
Judicial Proceedings Committee

AMENDMENTS TO SENATE BILL 673
(First Reading File Bill)
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.
r
l
r
r
L
r
r
r
I
"::;'. i
. '
..
.:
. ':
rcis
'. .
....
:
.
....
\
(ouose Ii 0g/Educatioo/Advocacy
February 28, 2012
RE: HB926/SB673 - Letter of Support
To Whom It May Concern:

This letter serves as a letter of support for HS926/SB673 - Courts and Judicial
Proceedings - Testimony by Convicted Perjurer.
Rape Crisis Intervention Service (RCIS) of Carroll County fully endorses the above
proposed legislation to support victims of violence who have been convicted of perjury in
the past.
During our more than 30 years of service, we have dealt with many sexual assault
incidents that have occurred behind closed doors involving two witnesses - the abuser
and the victim. To disallow the victim to testify would basically be granting the abuser
permission to continue to abuse the victim, without fear of legal consequences.
Additionally, without the victim's testimony, there would be no case. Not allowing a
victim, who is a convicted perjurer, to testify would create a situation whereas it would
be impossible to convict the abuser because there would be no testimony that the sexual
assault was non-consensual.
We ask that you support this imperative legislation in order to help and protect victims of
sexual assault.
Sincerely,
.
(
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)
1001 Prince Georges Blvd

Suite 750
Upper Mariboro, MD 20n4
3019520063
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
PRQJAD&D IN SUBS&CnON (B}-OF THIS SECTION. A

person convicted of
may Ret testify IS SUBJECT TO IMPEACHMENT BY EVIDENCE
OF THE CONVICT10N UNDER MARYLAND RULE 5-609.
(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.
:"-.
....
. - .,...
. '. '"
..."'.I
: "0: .
11
EXHIBIT B
Case 8:13-cv-03059-PWG Document 63 Filed 02/14/14 Page 1 of 3
February 12, 2014

The Hon. Judge Paul W. Grimm
USDistrict Court for the District of Maryland
Greenbelt Division
6500 Cherrywood Lane
Greenbelt, MD20770
RE:8:13-cv-03059-PWG Kimberlin v. National Bloggers Club et al
Your Honor:
My name is Bill Schmalfeldt. Since 1977, I have been involved in journalism in one
form or another. I am a member of the Society of Professional Journalists and the
National Society of Newspaper Columnists. I've written about everything from mass
catastrophes, on-the-scene reports on the deaths of celebrities, to light, feature
articles and satirical opinion. I am proud of my craft and have been well rewarded
and awarded. I was diagnosed with Parkinson's disease in 2000, and by 2011 my
disease had progressed to the point where I had to retire from a comfortable
position as a GS-13 Writer/Editor at the National Institutes of Health.
Although I am not a party in the above-referenced lawsuit, I must take exception to
what defendant WJJHoge III wrote about me in his "Defendant Hoge's Reply to
'Plaintiffs Response to Defendant Hoge's Two Latest Filings'" entered into the
docket on Feb. 10.
In his responses and replies, Mr. Kimberlin has taken care to leave my name out of
the fray when referring to "a reporter" who has been subjected to 366 charges of
harassment, electronic mail harassment, illegal access to a computer and violation of
a peace order filed against me by Defendant Hoge since February 2013, all of which
have been dropped by the Carroll County State's Attorney. Mr. Hoge, however, in his
eagerness to further smear and besmirch what is left of my reputation as a
journalist after a year of sustained attack by Mr. Hoge, defendant McCain,defendant
Akbar, defendant Walker and others, felt it necessary to identify me by name in his
recent filing. Moreso, he felt it was important to his case to identify me as an
"adjudicated harasser" who Mr. Hoge finally secured a peace order against on his
third try. He secured this peace order in Carroll County, although I live in Howard
County. After two district court judges turned him down, he got a circuit court judge
who admitted on the stand that he has no idea what "the Twitter" is or what it does
to agree that blocking a person on Twitter was as difficult as disabling Internet
functionality or changing a phone number. The same judge disregarded the opinion
of the state attorney general and the federal court in their USv. Cassidy ruling when
he granted Mr. Hoge's motion to extend the peace order another six months in
December.
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

"
I'r
i'

FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION
; ",
...
No. PWG 133059
NATIONAL BLOGGERSCLUB, etal

Defendants.
VERIFIED
RESPONSE TO MARCH 4, 2014 ORDER TO SHOW CAUSE
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.
1. Plaintiff filed a Second Amended Complaint on March 7, 2014 and will be

serving this new Complaint on Defendants
Breitbart.com
and KimberlinUnmasked
National Bloggers Club, Akbar,
who has been identitfied as Lynn
Thomas.
Plaintiff has already talked with the Clerk of the Court and has
prepared
summons
for issuance by the Clerk.
2. Defendant Lee Stranahanaccepted

informed Plaintiffthat
a timely manner.
service of the previous complaint and has
he will respond to the Second Amended Complaint in
Plaintiff has talked with Defendant Stranahan
and by email about this case on several occasions.
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
. ,
I
1\
..
.> '::0
3. Plaintiff has properly served Defendant Breitbartcom
with a copy of the
previous complaint by certified mail, return receipt requested,

delivery and Defendant Breitbartcom
restricted
signed the green card on what appears
to be January 4, 2014. The card is dated 1/4/13
but clearly that is a mistake
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
as refused or unclaimed. Exhibit B. These Defendants are aware of
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.
He has mocked Plaintiffs inability to serve him.
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
has been identified as a result of two
to Google in a case Plaintiff has pending in the Montgomery
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
of blog posts and thousands
accounts were suspended.
of tweets, before her blogs and Twitter
Two judges in Montgomery
County Circuit Court
found that KimberlinUnmasked has engaged in prima facie defamation of

Plaintiff and therefore ordered Google to disclose all information in its
possession regarding the identity of KimberlinUnmasked. That last
subpoena was complied with only a few weeks ago, showing a direct
connection between KimberlinUnmasked and the emails used to register its
Google and Twitter accounts and Lynn Thomas.
8. None of the Defendants has been prejudiced by the lack of service. They all
have notice of the suit, with Defendants Akbar, National Bloggers Club and
KimberlinUnmasked openly evading service.
9. Plaintiff has no idea why Defendant Breitbart.com has failed to answer the
suit after being properly served with a formal summons. Plaintiffwill again
serve all of these Defendants with the Second Amended Complaint and if they
do not answer, Plaintiff will move to serve them by Alternate Service.
Brett Kimberlin
8100 Beech
e Rd
Bethesda, MD20817
(301) 320 5921
justj cejtm p@comcastnet
Verification
CI!St4
I Brett Kimberlin certify under penalty of perjury pursuant to t~

provisions of 28 USC1746, that the above is true and correct
Dated this 11day of March, 2014
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
Case 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 1 of 27
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
----------------------------x
BRETT KIMBERLIN
Plaintiff,
v.
Civil No. 380966
AARON WALKER, ET AL
Defendant.
----------------------------x
HEARING
Rockville, Maryland
April 9, 2014
NATIONAL CAPITOL CONTRACTING, LLC

200 North Glebe Road, Suite 1016
Arlington, VA 22203
(703) 243-9696
1/)1 ORIGINAL
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
----------------------------x
BRETT KIMBERLIN
Plaintiff,
v.
Civil No. 380966
AARON WALKER, ET AL
Defendant.
----------------------------x
Rockville, Maryland
April 9, 2014
WHEREUPON, the proceedings in the above-entitled

matter commenced
BEFORE:
THE HONORABLE JOAN E. RYON, JUDGE
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
r

3
PRO C E E 0 I N G S
1
2
THE COURT:
Please be seated.
THE CLERK:
Civil 380966 Brett Kimberlin versus Aaron
Walker et AI.
THE COURT:
MR. KIMBERLIN:
MR. OSTRONIC:
Good morning, Brett Kimberlin,
Pro Se.
Good afternoon, your honor, Patrick
Ostronic on behalf of Mr. Walker, Mr. Hage, Ms. Malone, and Mr.
Akbar and today, myself included.

THE COURT:
10
Good morning.
Okay, we are here this morning on the
11
plaintiff's motion for an order to show cause at docket entry
12
53; on plaintiff's motion for sanctions at docket entry 60;
13
there's a motion to compel at docket entry 78 that I'm going to
14
dismiss for failure to comply with Maryland Rule 2431 so we
15
won't be addressing that; and the motions at docket entries 81
16
and 94 are moot as there are court orders already addressing
17
those so we have a motion for show cause and a motion for
18
sanctions before the court this morning.
19
MR. KIMBERLIN:
20
THE COURT:
21
MR. KIMBERLIN:
Okay, so you say 53 and 60?
Yes.
Okay, I would like to take this
22
opportunity to withdraw my request for sanctions against Mr.
23
Walker.
24
my favor by Judge Burrell and in my opinion the issues have been
25
dealt with.
That motion was the underlying motion that was ruled in
The--

4
THE COURT:
1
2
motion for sanctions I am looking at

MR. KIMBERLIN:
THE COURT:
oh, against Mr.?

53 against Mr. Walker, I
Motion for a show-cause.
So, you're
withdrawing that?
MR. KIMBERLIN:
No, Mr.
Yeah, I think so.
I mean, the issue
was -THE COURT:
Okay.
MR. KIMBERLIN:
10
the issue was whether Mr. Walker
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.
That leaves number 60.
So 60 is the only left.
17
Mr. Ostronic to withdraw that.
18
already
I/ ve asked
I think that Judge Burrell had
It' 5 your motion.
19
THE COURT:
20
MR. KIMBERLIN:
21
THE COURT:
60 is not my motion.
Unless I have it -- I have it as
22
plaintiff's motion for sanctions.
23
MR. OSTRONIC:
24
MR. KIMBERLIN:
25
The
guess that's 53.
5
6
Which motion are you talking about?
We don't have a motion.

Oh, yeah,
that's right.
Motion for
sanctions againstMr. Ostronic; I'd like to withdraw that and so

5
1
everything -- in my opinion, everything's over.
TH8 COURT:
Okay, well if you're withdrawing 53 and
60, the court is dismissing 78 and 81 and 94 are moot and that
is all that I had listed as being set for hearing today.
you have something else?
MR. KIMBERLIN:
MR. OSTRONIC:
sanctions against Hr. Kimberlin?
9
10
THE COURT:
Did
No, I'm happy wi th tha t.

Does - did you miss my motion for
Do you have the docket entry number?
The
one I dismissed was the plaintiff's motion to compel --
11
MR. OSTRONIC:
Correct.
12
THE COURT:
which did not contain a good faith
13
certification as required by the rules.
14
dismissed.
15
MR. OSTRONIC:
16
THE COURT:
17
MR. OSTRONIC:
That's the one that I
Right.
Then I have two that are moot, 81 -81 should not be moot, your honor,
18
because that was a motion for sanctions against plaintiff for
19
presenting false documents to the court.
20
THE COURT:
21
MR. KIMBERLIN:
22
THE COURT:
23
MR. KIMBERLIN:
24
THE COURT:
25
wrong one here.
And there is an order

Your honor --
Oh, just hold on.

Okay.
Let's see.
Hold on a second.
All right, maybe I have the

81 that was the protective
6
1
order, we're talking about 81 the motion for sanctions.
106 but 106 is an order granting alternate service.
not what the motion 81 is,

MR. OSTRONIC:
It says
But that's
I don't think, unless it's
I have a copy if you'd like, your
honor?
THE COURT:
No, I have the docket entry.
Just one --
yeah, number 81 is the defendant's motion for sanctions alleging
that the plaintiff filed altered exhibits.
which deals with alternative service?
10
(HUSHER ON]
11
[HUSHER OFF]
12
THE COURT:
13
So, how does 106 --
All right, so it looks like part of this
you had asked that the plaintiff's action be dismissed.

MR. aSTRONIC:
14
I asked the plaintiff's action be
15
dismissed because he filed altered documents with the court,
16
your honor.
THE COURT:
17
Right, right, but Judge Burrell ruled that
18
the plaintiff had served the defendant and that an answer is
19
due.
20
MR. OSTRONIC:
Your honor, if I may?
21
(unintelligible).
22
attention in our January 9th hearing.
This was first brought to Judge Burrell's
23
THE COURT:
24
MR. OSTRONIC:
25
If I may
Right.
At that time, Judge Burrell took note
of the altered documents, denied plaintiff'S motion that he

7
1
would be - that -- for his alternative service request -Right.
THE COURT:
MR. aSTRONIC:
And then told the court, told us -- the
plaintiff and myself that
"He' 11 file something and you' 11 file a response to it."
I filed a motion asking for sanctions because he had filed
altered documents.
attention that day because he just filed it the day before -- or
two days before that.
10
11
THE COURT:
looked at Mr. Kimberlin and said,

Later
They were just brought to the court's
Okay,
50
what is this sanction that you're
seeking?
MR. OSTRONIC:
12
I would like to see the case dismissed
13
against Mr. Akbar because he filed altered documents to the
14
court.
15
THE COURT:
16
If 11 hear from you, go ahead.
17
Okay, all right.
MR. OSTRONIC:
1 / 11 hear from you.
Thank you, your honor.
No,
As we outlined
18
in our motion, the plaintiff originally asked for alternative
19
service back in November.
20
court certain documents which showed that he had sent certified
21
letters to a certain address in Texas and Virginia.
22
at that time was not represented -- I was not representing Mr.
23
Akbar in any fashion at that time.
24
coming up at which time Mr. Kimberlin's motions would be heard.
25
On January 6th, I filed a motion in opposition for the alternate
At that time he presented to the
Mr. Akbar
We had a January 9th hearing

8
1
service that Mr. Kimberlin had asked for.
stated that -- at that time I stated that Mr. Akbar had never
lived in Virginia which is what he was claiming.
came back the next day and asked for sanctions against me saying
that I had filed a false document.
certain documents with the court which were purporting to be the
same documents that he had filed back in November, however,
these -- this time his two green cards that he showed were now
checked as restricted delivery where the ones that were filed
10
11
And at that time
Mr. Kimberlin
And at that time he filed
back in November clearly showed no restricted delivery.

In addition, your honor, the underlying documents, the
12
plaintiff's had put forward to the court to back up the idea
13
that there was alternate service clearly showed that he never
14
spent the money to do so and was never asked the Post Office to
15
do restricted Ii.
16
if you're going to do it by certified letter on the initial
17
pleading, -- you have service on initial pleading -- you have to
18
do it with restricted delivery and you've never done restricted
19
delivery but he continued to insist that restricted delivery had
20
been done up to and including this last motion which he filed
21
docket number 85, which is the response to my motion for
22
sanctions at which time he continues to say that he was dealing
23
with restricted delivery, although, if you look at the receipt
24
on the next to last page it says -- you can see the receipt with
25
the post office which clearly shows there is no restricted
Now as you know Maryland Rules clearly say,

9
1
delivery asked for --
THE COURT:
I know you
said you showed Judge Burrell but I haven't seen them.
MR. OSTRONIC:
Your honor, I can give you a fresh set
of -- you know, if it's easier.
THE COURT:
So, you're saying that when he was before
Judge Burrell, at that point he had checked boxes that had not
been checked with the first filing,
Where were these receipts?
MR. OSTRONIC:
is that what you're saying?
If you look at -- yes, your honor.
10
Because the original filing, which was docket number 59 -- no,
11
no -- yes.
12
filing -- if you look at that you will see the priority mail
13
receipt which you'll see it says
I'm sorry docket number 38, it's 38 in the original
14
THE COURT:
15
MR. OSTRONIC:
16
yes, your honor.
17
delivery one.
Exhibit C?
I think it ends in 9892.
18
THE COURT:
19
MR. OSTRONIC:
20
21
Yes, it should be part of Exhibit C,
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
of that, please, your honor.
23
a few pages later --
24
THE COURT:
25
The restricted
You can take note
Then you note a few days later --
In the exhibit or a few more docket
entries?

10
MR. OSTRONIC:
No, a few pages later in that same
exhibit.
I'm sorry, your honor.
see the green sheet there.
shows the green -- the receipt card, certified mail check; the
restricted delivery box is not checked.
THE COURT:
MR. OSTRONIC:
You'll see a green -- you'll
The green receipt picture and it
Okay.
And that is consistent with the fact
that he did not pay for restricted delivery.
forward to docket number 59
10
THE COURT:
11
MR. OSTRONIC:
Now we fast
Okay.
Docket number 59, if you go to -- I
12
think Exhibit C which is probably towards the end of the -- and
13
you'll see there, your honor, the same card but it's checked
14
with restricted delivery.
15
THE COURT:
Okay.
16
MR. OSTRONIC:
So that tells you now that he altered
17
it to try to show that he was doing restricted delivery when, in
18
fact, he did not do restricted delivery.
19
THE COURT:
So, where I'm confused though is these
20
pleadings are all well before the order that Judge Burrell
21
entered at docket entry 106.
22
MR. OSTRONIC:
23
THE COURT:
24
25
Yes, your honor, but that --
Which he found that he made appropriate
efforts.
MR. OSTRONIC:
He came back a second time after our

11
court's hearing on January 9th, he filed, again, for alternat
services and that is when she ruled on it.
THE COURT:
MR. OSTRONIC:
No, it hasn't.
against that several times.
6
7
So, it's been done properly now?
THE COURT:
I filed a motion
Those motions have not been heard.
She ruled tha t i t ' s been done
appropriately?
MR. OSTRONIC:
THE COURT:
10
No.
She didn't?
MR. OSTRONIC:
All she ruled was that he was served as
11
of January 25 th
12
days to comment or anything, your honor.
13
14
And I have a motion because I didn't get my 18
THE COURT:
I'm still confused.
So, I'm looking at
Judge Burrell's order
15
MR. OSTRONIC:
Uh-huh.
16
THE COURT:
and it says that she hereby finds
17
plaintiff has made reasonable efforts to serve defendant Ali
18
Akbar with the complaint and that defendant Akbar has notice of
19
the compliant but has evaded service.
20
court finds the plaintiff has served defendant Akbar as of
21
January 25th, 2014, and an answer is due from the defendant by
22
March 26th."
23
24
25
Okay.
"Therefore the
That's what her order says -- I just --
MR. OSTRONIC:
Yes, your honor, that's what the order
says.
THE COURT:
Okay, so she's found that there's been

12
service.
2
3
At least that's what -MR. OSTRONIC:
She said -- yes, your honor, we already
put motions against that
THE COURT:
But they haven't been ruled on yet?
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
No, your honor.
Okay.
But that still doesn't address the fact
that he altered a document --
THE COURT:
10
Okay.
MR. OSTRONIC:
which is not part of her order or
11
part of his second motion.
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.
And all I asked for here was sanctions.
16
17
THE COURT:
I did not
When was the hearing date before Judge
Burrell in January?
18
MR. KIMBERLIN:
19
THE COURT:
20
His motion that she ruled on came
The 13th.
It looks like all of these documents were
already in the file by then.
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:
And either you or Mr. Akbar on his own --
13
1
I'm just looking to see -- made a motion to dismiss on that date
which was denied.

MR. OSTRQNIC:
3
4
THE COURT:
MR. aSTRONIC:
-- I
Based upon no service?

No, your honor, he's made a motion that
made a motion on this basically, saying --
THE COURT:
MR. aSTRONIC:
THE COURT:
10
11
your
honor.
I just made an oral one, yes,
Okay.
But I
So, this has been ruled on in terms of
your request for dismissal?

MR. OSTRONIC:
12
No, she said she would not dismiss it
13
at this time and she -- what she said, your honor, was she
14
referred to the plaintiff and said,
15
something about this, you're going to respond to it."
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
only time this has happened here and many [unintelligible]
20
clients, your honor --
21
MR. KIMBERLIN:
22
THE COURT:
23
24
25
going to file
Further, your honor,
She just
this is not the
Objection.
Sorry, but he can tell me what he wants.
Go ahead.
MR. OSTRONIC:
We have another case involving the same
plaintiff over in the Federal Court in which [unintelligible]

14
1
the plaintiff has already admitted to altering a court document
over there and this involves the same defendants here
(unintelligible) .
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
THE COURT:
All right, so what is it that you want?
May I speak?
I want him to tell me what he wants and
then I'm going to let you address what he said and what he
wants.
HR. OSTRONIC:
10
Objection.
Ideally I would like to have the case
11
against Mr. Akbar dismissed because Mr. Kimberlin here has tried
12
to put one over on the court and in an effort to look like he
13
has brought -- he has put forward for alternative service and
14
clearly he has not.
15
THE COURT:
Okay.
16
MR. OSTRONIC:
17
on about that'd be more favorable.
18
THE COURT:
19
MR. KIMBERLIN:
20
21
22
23
litigant.
Okay, Mr. Kimberlin?
I apologize.
THE COURT:
And any other sanctions he can oppose
Yes, your honor, I'm first pro se

I made some errors in this case.
Well, if you falsified a document that has
nothing to do with being a first time pro se litigant.

MR. KIMBERLIN:
No, no, I didn't falsify a document
24
but Judge Burrell heard this issue at the January 15th hearing.
25
She denied my motion for alternate service at that time.
She's
15
saying there's confusion here and reset it.
I reset it to Mr.
Akbar, it came back, again, as undeliverable, and then I filed a
motion for alternate service; she granted that motion for
alternate service.
motion to reconsider and she issued another order.
the docket number on it but she amended her order which I have a
copy here if you want to see it.
he would have additional time in which to respond by April 4th.
So, I did exactly what Judge Burrell asked for and you know he's
10
trying to re-litigate something that was already ruled on by the
11
judge.
Mr. Ostronic came back and asked for a
12
THE COURT:
13
MR. KIMBERLIN:
14
THE COURT:
I don't have
And she said at that time that
All right.
She had all this in front of her.
Why don't you have a seat for a minute?
15
I'm not cutting (unintelligible]; let's play Court Smart and
16
let's listen to Judge Burrell heard and what Judge Burrell said.
17
MR. KIMBERLIN:
Okay.
18
THE CLERK:
On the January 13th hearing?
19
THE COURT:
Yes, please and I don't know if you're
20
going to be able to tell (unintelligible] notation, we're
21
specifically looking at her addressing the defendant Akbar's
22
motion to dismiss.
23
24
25
MR. OSTRONIC:
hearing.
It should be toward the end of the
Toward the end of the hearing it should be.

THE COURT:
How long was the hearing?
16
1
MR. KIMBERLIN:
THE COURT:
MR. OSTRONIC:
I'd say at least 40 minutes.
How long?
About 40 minutes, your honor.
know if it was that long.
THE CLERK:
(Where upon the audio recording was played. l
THE COURT:
[unintelligible) court documentation and I
find that the (unintelligible].
UNIDENTIFIED FEMALE:
10
(whereupon the recording was stopped.)
11
THE COURT:
12
issue?
Do you remember when you raised this
In the beginning of the hearing or?
13
MR. OSTRONIC:
14
(Where upon the audio recording was played.)
15
THE COURT:
16
MR. OSTRONIC:
17
I don't
No, it was towards the end, your honor.
The defendant (unintelligible).

[unintelligible] we had provided
[unintelligible).
18
MR. KIMBERLIN:
19
THE COURT:
20
MR. KIMBERLIN:
21
MR. OSTRONIC:
22
THE COURT:
23
MR. KIMBERLIN:
The order gives it 10 days.
[unintelligible].
I have no problem with that.
Court (unintelligible].
All right, anything else?

No,
I mean obviously (unintelligible]
24
very diligent trying to get this thing served on this guy and
25
I'd like to do [unintelligible]. I think they have an

17
opportunity to appeal it directly and they didn't.
point blank if he's going to appeal and he said no.
for them to come in here now and say they're going to appeal
just seems disingenuous to me.
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
You know
Your honor may I be heard?
Yes.
He had just misrepresented any
conversation he's had with me.
not -- I had never said [unintelligible).
10
MR. KIMBERLIN:
11
MR. OSTRONIC:
12
I asked him
I never said to him whether or
{unintelligible].
I admit (unintelligible) to another
side.
13
THE COURT:
I'm going [unintelligible].
14
(whereupon the audio recording was stopped.)
15
THE COURT:
16
(whereupon the audio recording was played.)
17
THE COURT:
Go further.
[unintelligible] based on (unintelligible]
18
to indicate that the defendants were targeting that
19
[unintelligible].
20
at this time.
21
22
23
24
25
If the other defendant was (unintelligible]
MR. OSTRONIC:
Your honor,
[unintelligible).
THE COURT:
No. I read a lot of cases [unintelligible]
and based on what I understand (unintelligible].

MR. OSTRONIC:
Your honor,
(unintelligible] one more
18
1
thing [unintelligible] talk about right now which is also in
your jurisdiction [unintelligible] in Virginia.
[unintelligible] and Mr. Kimberlin was alleging that the reason
he [unintelligible] or anything like that.
[unintelligible) defendant's conspired together to have some
[unintelligible] -- prosecution and they [unintelligible] simply
malicious prosecution [unintelligible) by Mr. Walker.
McCain and everything that he had been [unintelligible)
complaint [unintelligible) in July 2013 [unintelligible]
Ms. McCain
If, however,
Ms.
10
allegations [unintelligible} Ms. McCain.
11
[unintelligible] but not on the record that [unintelligible).
12
Those [unintelligible) all predated all the way back to the
13
[unintelligible] back in July.
14
[unintelligible].
15
right now is not something he just made up is based on an actual
16
charge [unintelligible].
THE COURT:
18
MR. OSTRONIC:
20
He filed for a protective order
That was made while he -- what you're hearing
17
19
Ms. McCain
[unintelligible].
(unintelligible] is what I'm saying but
that's what the basis is.

THE COURT:
(unintelligible) accurate in Maryland
21
[unintelligible] write it down.
22
previous motion or order [unintelligible], I'm going to find
23
that (unintelligible) for relief so [unintelligible).
24
couple other motions?
25
MR. OSTRONIC:
So, with respect to the
I think a
[unintelligible] composed

19
[unintelligible], your honor, the plaintiff has filed
[unintelligible].
otherwise nothing.
I have no idea what [unintelligible] to say.
[unintelligible] .
THE COURT:
6
7
10
He has nothing to go with [unintelligible].

I want
[unintelligible] everything
[unintelligible] .
MR. OSTRONIC:
8
9
However not one time did (unintelligible)
[unintelligible] opportunity in one of
them [unintelligible] financial sanctions and there was not one

[unintelligible] -THE COURT:
11
[unintelligible] order [unintelligible].
12
The defendant's motions to dismiss are denied.
The rule
13
[phonetic sp] order will be stayed for a period of one week to
14
allow defendant to file an appropriate [unintelligible] court of
15
appeals.
16
MR. KIMBERLIN:
Thank you.
17
MR. OSTRONIC:
18
19
THE COURT:
20
MR. OSTRONIC:
I'm-I may have misremembered when we did
21
that.
It may have been in the very beginning.
22
have been the first part we did.
23
THE COURT:
24
MR. KIMBERLIN:
25
That part may
Do you remember?
No, I doni t
remember but 1 1 m ready to
continue my --

20
1
THE COURT:
Well the key, the crux to this is going to
be what Judge Burrell ruled on.
And I can't take your memories
for it because you don't agree so let's go back to the beginning
and see if she addressed it.
MR. KIMBERLIN:
(Where upon the audio recording was played.)
THE COURT:
11
[unintelligible] court record
[unintelligible] .
MR. OSTRONIC:
9
10
Okay, let's go to the beginning.
No, your honor [unintelligible] last
time.
THE COURT:
All right, we'll dismiss the
12
[unintelligible].
13
order to (unintelligible] denied and plaintiff's motion to find
14
[unintelligible] and [unintelligible] 2-1-210 [unintelligible]
15
motion for [unintelligible] docket entry [unintelligible].
16
17
Motion to dismiss (unintelligible) and an
MR. OSTRONIC:
Your honor, the motion
[unintelligible] .
18
THE COURT:
Okay and then (unintelligible] motion
19
20
THE COURT:
Okay, we can stop it.
All right,
21
regardless of what she may have said, she made it clear what she
22
was ruling on.
23
was told they weren't conductible today.
24
meant these are the motions that just had been filed and they
25
weren't right.
She asked if there were any other motions.
She
I'm assuming that
So, I'm not goIng to determine anything that she

21
1
said as dispositive so I'll hear from you.
MR. KIMBERLIN:
presented exactly what he's presented here,
judge looked at it -THE COURT:
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
that oral motion.
12
I think.
because she didn't rule on the motions before me.
Okay, at that hearing, Mr. Ostronic
Go ahead.
No, she ruled on the motion to
He had filed a motion to dismiss the case based on
THE COURT:
Okay, maybe so but she outlined what she
13
was ruling on and that wasn't one of the motions.
14
to the [unintelligible); did you alter the certificates?
15
16
17
18
19
MR. KIMBERLIN:
So let's get
These are -- when I go to the post
office, I asked -THE COURT:
Did you alter the return receipts between
docket entry 38 and 50 whatever, did you change them?

MR. KIMBERLIN:
I did not change them intentionally.
20
When I go to the post office, I ask them to do it so it's
21
registered or whatever it's called, restricted delivery, and
22
they did not do it.
23
I've never paid an extra fee for restricted delivery.
24
literally 50 or 100 of these things and never once faked a
25
[unintelligible] restricted delivery, but. you know, Mr. Akbar
He's saying that there's an extra fee.

I've sent
22
1
here sitting right there that this was sent in January 2nd to
Mr. Akbar.
here is January 25th, again, Mr. Akbar came back restricted
delivery, you know, undeliverable.
accusing me of not paying the extra fee.
THE COURT:
MR. KIMBERLIN:
THE COURT:
It came back, it' 5 restricted delivery.
This one
And you know he keeps
This iso't about paying a fee.
That's what he said.
This is about the exact same brief green
card being filed -- the support motions you filed, the different
10
docket entries, one showing the restricted delivery box checked
11
and one not.
12
13
MR. KIMBERLIN:
post office to send it restricted delivery.
14
THE COURT:
15
MR. KIMBERLIN:
16
THE COURT:
17
MR. KIMBERLIN:
18
THE COURT:
19
20
Your honor, like I said I asked the
You're not answering my question.

Yes, I changed
Did you change it?

Yes, I did.
And then you filed it representing that it
accurately reflected the green card that had been filled out.
MR. KIMBERLIN:
No, no, no, I filed it and accurately
21
said -- it accurately reflected what I told the post office to
22
do and that's what it is.
23
litigant and --
24
THE COURT:
25
MR. KIMBERLIN:
You know, like I said I'm a pro se
Don't even use that with me.

Okay, okay

23
THE COURT:
You know it's one thing to say I'm pro se
so I don't understand rules or I don't understand how to get
something in and the rules of evidence and another thing to
alter something and file it.
to see exactly what you represented it to be when you filed it
again at docket entry 59 so give me a minute.
I'm reading your motion right now
So, in your motion at docket entry 59 and 60 at
paragraph seven, you say, "Plaintiff does not need to provide an
affidavit because the documents on which this motion is based
10
are prima facie evidence, an official ticket from the Fairfax
11
County Sheriff, official u.s. Postal Service envelopes with
12
tracking numbers, and a statement by defendant Akbar whom
13
[unintelligible) sworn under the penalties as perjury."
14
you're telling me that when you attached these copies of the
15
green card, you weren't intending to represent that those were
16
accurate?
17
MR. KIMBERLIN:
So,
They were accurate from what I
18
intended the post office to do and the judge -- Judge Burrell
19
had those in front of her.
20
that motion.
21
and so I redid it and then she granted the motion for alternate
22
service and she amended it after he requested it and I have the
23
amendment here.
24
brought that up in his -- when he was contesting the alternate
25
service the second time and she still ruled that the case --
She denied this motion.
She denied
She said you have to redo it because it's unclear
The amendment gives him additional dates and he

24
that I should get alternate service.
THE COURT:
All right, I'm not going to dismiss this
case because it's just going to be we have to start this all
over again and at this point there's been another method of
service but I'm taking a recess because if I can do what I want
to do, sir, I'm going to fine you but I'm not sure I have the
authority so I'm going to go find out.
MR. OSTRONIC;
THE BAILIFF:
10
11
Your honor, if I may?
Just one last thing, this is just a
personal thing, I have a 5:00 flight to Copenhagen so

THE COURT:
I really meant a minute when I said a
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?
All right, we're back on the record.
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
22
the motion for sanctions not for contempt.
23
discovery rules, they don't really apply so I'm going to deny
24
the request to dismiss.
I think that Judge Burrell has now --
25
we're sort of past this.
There's been another attempt, she's
So under the
25
1
determined there's been service.
and you can still maintain that with her but I'm going to deny
the motion.
MR. KIMBERLIN:
THE COURT:
I know that that's disputed
Thank you.
And for the record, Mr. Kimberlin, you
have withdrawn, it looks like, your motion -- your subpoena for
Mr. Delbianco [phonetic sp]?
MR.
THE COURT:
10
KIMBERLIN:
Yes.
Okay, so that withdrawal is what renders
the motion at docket entry number 89 moot as well.
11
MR. KIMBERLIN:
12
THE COURT:
13
MR. KIMBERLIN:
14
THE COURT:
Right.
All right, thank you.

Thank you.
Mr. Kimberlin, I hope you're aware -- if
15
you weren't before -- you're aware now and you do not alter
16
anything you file with this court because by filing it you're
17
representing to the court that that document is as it was and
18
has been in its unaltered state to back up whatever you're
19
alleging.
20
MR. KIMBERLIN:
21
THE COURT:
22
MR. KIMBERLIN:
23
MR. OSTRONIC:
24
THE COURT:
25
MR. OSTRONIC:
I understand.
Okay.
Thank you.
Right, yeah, yeah.
Sorry.

26
1
THE COURT:
Thank you.
I hope you're going for fun.
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
THE COURT:
MR. OSTRONIC:
(The proceedings were concluded)
No, it's for business.
Oh.
I'm going to Warsaw.
I hope you'll have time to have fun.

I like to think so (phonetic sp) --
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

27
1
X Digitally signed by Olivia Palermo
Digitally signed certificate
NATIONAL CAPITOL CONTRACTING, LLC hereby certifies
that the foregoing pages represent an accurate transcript of the
duplicated electronic sound recording of the proceedings in the
Circuit Court for Montgomery County,
in the matter of:
Civil No. 380966
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
22
23
24
25
EXHIBIT E
.,

FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
No. PWG 13 3059
NATIONAL BLOGGERSCLUB, eta!.,

Defendants
PLAINTIFF'S RESPONSE TO DEFENDANTS HOGE AND WALKER'S MOTIONS TO

DISMISS
Now comes Plaintiff and responds in opposition to Defendants Hoge and Walker's
Motions to Dismiss. The Court must deny a Motion to Dismiss under Rule 12(b )(6)
of the Federal Rules of Civil Procedure unless it "appears beyond doubt that Plaintiff
can prove no set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, (1957). "The question is whether
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,
at 336. The Court, when deciding a motion to dismiss,
must consider well-pled allegations
in a complaint as true and must construe those
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
of the opposing party. A.S. Abell Co. v. Chell, 412
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
statute of limitations applies to the
False Light Invasion of Privacy Claim.
Defendants Have Portrayed Plaintiff In False Light

3. As set forth in the Complaint, Defendants have repeatedly
stated that Plaintiff is a swatter or involved with swatting.
imputed and
The Defendants
are members of Defendant National Bloggers Club, which continues to state

on its website that Plaintiff is a swatter. Exhibit A. These published
statements
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
person would tind that the false light in which the
other person was placed highly offensive to a reasonable

the defendant
person; and (3) that
had knowledge of or acted with reckless disregard as to the
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.
Plaintiffs Defamation Claim is Not Barred By Maryland's One-Year

Statute of Limitations
5. Defendants argue that Maryland's one-year statute of limitations bars
Plaintiffs defamation
claim because "all alleged statements
by Mr. Hoge were
made more than one year before filing of the instant suit." Hoge at 11. See
also Walker at 41. These arguments
are without merit for a multitude
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
stated and imputed that Plaintiff
swatted him. Complaint 16 et seq.

7. These publications
were part of a campaign that continues to this day to
falsely accuse Plaintiff of crimes in order to harm him and raise money for
the Defendants.
This campaign constitutes
discrete acts by and a conspiracy
among the Defendants, and the overt acts of this conspiracy accusing Plaintiff
of swattings
did not stop on June 8, 2012. In fact, Defendant Ali Akbar, on
behalf of Defendant National B10ggers Club of which Defendants

3
Hoge and

Walker are members, stated on his blog on October 14, 2013, that Plaintiff
was responsible
for the swattings.
Exhibit A. Defendant Akbar uses that blog
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.
Shessler v. Keck, 271
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
the statute of limitations does not commence to run against
any of the libelous acts until commission of the last over act done in
furtherance
of the conspiracy.")
The conspiracy alleged by Plaintiff is a
continuing one that has not yet ceased.

9. Moreover, the statute of limitations does not apply because the Defendants
were responsible
for causing threats to Plaintiff of death and harm if he went
to court or contacted the authorities.
See Complaint at 12. Defendant Hoge
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
discuss every nuance of every pleading filed by Plaintiff with commentary

that Plaintiff will be jailed or sanctioned
by this judge or that judge. Id. The
purpose for these threats and intimidation
tactics is to chill Plaintiffs right to
redress.
11. It is well established
defendant
that the statute of limitations can be tolled where the
engages in conduct that threatens
seeking redress.
In such a case, the defendant
or intimidates
a party against
is estopped from relying on
the statute of limitations until after the intimidating
or threatening
behavior
ceases. Cf. Murphy v. Merzbacher, 346 Md. 525, 532, 697 A.2d 861 (1997).
12. Clearly Plaintiff has brought this defamation
claim within one year of
Defendant Hoge and Walker's defamation and intimidation

therefore
there is no statute of limitations
tactics, and
bar to Plaintiffs defamation
claim.
Plaintiffs Has Established All The Elements Of Defamation

13. A defamatory
statement
is one which tends to expose a person to public
scorn, hatred, contempt or ridicule, thereby discouraging

community
others in the
from having a good opinion of, or from associating
or dealing
with, that person.

"To recover for defamation under Maryland law, a plaintiff must establish
that: (1) the defendant made a defamatory statement regarding the plaintiff
to a third person; (2) the statement was false; (3) the defendant was legally
at fault in making the statement; and (4) the plaintiff suffered harm thereby."
Holt v.Camus, 128 F. Supp. 2d 812, 815 (D. Md. 1999).
14. Defendants Hoge and Walker argue that Plaintiff is defamation
proof because
(1) he was convicted of a crime that occurred in 1979 and (2) is a public
figure. These arguments
are without merit
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
a finding in another defamation

Montgomery
judgment
case brought by Plaintiff, Kimberlin v. Allen,
County Circuit Court #339254, which resulted in a favorable
for Plaintiff, Judge Quirk denied the motion on February 2, 2012.
Defendant Walker made the same argument
in a civil case in Prince William
County Virginia but the judge implicitly rejected it when he excoriated

Walker for filing a frivolous and malicious suit against Plaintiff. The judge
dismissed that case on December 4,2012. See Exhibit F. Now Defendants
Hoge and Walker are making the same argument
that has been repeatedly
rejected by other courts.

Docket Date:
02/09/2012
Docket
Description:
ORDER, FOR APPROPRIATE
Docket Number: 140

RELIEF
Docket Type:
Ruling Filed By: Court Status: Denied
Ruling Judge:
QUIRK, JOSEPH
Reference
Docket(s):
Motion: 119
Docket Text:
ORDER OF COURT (QUIRK, J.) THAT DEFENDANT'S MOnON TO DECLARE BRETT

KIMBERLIN AS A PUBLIC nGURE RATHER THAT PRIVATE CmZEN
(D.E. #119) IS
DENIED, ENTERED, (COPIES MAILED)
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
In that capacity, Plaintiff has an impeccable reputation.
Yet
Hoge and Walker and the other Defendants spend thousands
of
hours each year, with tens of thousands
of blog posts, tweets, and frivolous
court filings trying to destroy Plaintiffs livelihood with false allegations
of
crimes, such as swattings.

17. Defendants
Hoge and Walker and the other Defendants
have acted with
extreme malice in their defamatory
conduct.
industry with their false narratives
against Plaintiff, lining their pockets with
tens of thousands
in donations,
They have created a cottage
increasing their web ranking on Internet
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
him or rejects their false narratives.
In fact, Defendants Hoge and Walker were the creators of a campaign against
the Howard County Prosecutors
harassment
which resulted in weeks of threats and
to that office simply because they would not prosecute
Plaintiff
and others for the false crimes concocted by Hoge and some of the other
Defendants.
Exhibit G. Clearly, Defendants Hoge and Walker and the other
Defendants acted with reckless disregard
for the truth in falsely stating and
publishing that Plaintiff was a swatter or was involved with swattings. New
York Times Co. v. Sullivan, 376 US 254 (1964).
Plaintiff
Has Properly
Alleged Violation of RICO and Conspiracy

Violate RICO
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.
19. The National Bloggers Club ("NBC"), an organization
of which Defendants
Hoge and Walker are members, has publicly stated that it is a sOl( c)(3) nonprofit which accepts tax-deductible
donations.
Exhibit H. This is false
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
That money has been sent to NBC by mail and by

across state lines. As such, NBC engaged in wire fraud and
mail fraud under 18 USC 1341 and 1343. NBC received scores ifnot
hundreds
of donations
in this way, and each donation constitutes
a separate
predicate act under RICO. Wang Laboratories v. Burt, 612 F.Supp. 441
(D.Md.1984 ) (each act is a separate
offense under RICO even if there is but
one scheme involved).

21. On information
and belief, NBC deposited
the funds it received from its
fraudulent
fundraising
scheme into a federally insured bank(s), and
laundered
them for the purposes of its members in violation of 18 USC 1957.
Again, each financial transaction
constitutes
a predicate act under RICO.
22. The Defendants, including Defendants Hoge and Walker, knew that NBC was
fraudulently
raising funds when media reports in May 2012 identified NBC
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)
status from the IRS. Exhibit).
Some of those media
reports demanded that NBCand Defendant Akbar disclose the IRSapproval,

but that disclosure never occurred because there was no IRSapproval. Id.
23. Once Defendant Akbar was exposed as a felon and huckster, the Defendants
continued to raise funds through another Defendant, DBCapitol Strategies,
which falsely published on its website that Plaintiff was involved with
swatting conservative bloggers. See Response to DBCS'Motion to Dismiss.
Dan Backer and DBCS had been connected to Defendant Akbar for several years,
and had been paying Defendant Akbar's Vice & Victory Agency for political
messaging, website development, and other things, dating back two years. See
FEC Expenditures at Exhibit K. This fact alone implies guilty knowledge by
the Defendants that raising funds through NBCwhile falsely portraying it as a
501(c)(3) was illegal and constituted fraud.
24. As demonstrated in great detail in Plaintiffs Response to Defendant DB
Capitol Strategies' Motion to Dismiss, it, through its attorney Dan Backer,
then filed a malicious and frivolous lawsuit in this Court against Plaintiff and
two non-profits with which he is involved requesting that this Court prohibit
Plaintiff from filing any pleadings in Montgomery County Courts without first
getting permission from a federal administrative judge. Walker v. Kimberlin,
JFM 12-1852 (Nov. 28, 2012). Judge Motz dismissed that case out of hand
but not before Defendant DBCapitol Strategies (1) tried to get Plaintiff fired
from his non-profit job in return for dismissing the non-profits from the suit,
and, when that did not work, and (2) issued a document hold to a foundation
that funded those non-profits falsely asserting that Plaintiff and the non-
10
profits were engaged in criminal activity. These actions by Defendant DB

Capitol Strategies constituted attempted extortion under 18 USC1951. In
essence, Defendant DBCapitol on behalf of Defendant Walker said: "fire
Plaintiff or we will destroy the funding base of the non-profits." And when
Plaintiff was not fired, they followed through with their threat by sending a
document hold letter laced with false allegations of criminal activity by
Plaintiff and the non-profits to the non-profit's largest institutional funder.
And that funder in turn ceased funding the non-profit. This not only
demonstrates extortion, but it also meets the injury to property or business
requirement of 18 USC1964.
25. This conduct by Defendant DBCapitol Strategies, on behalf of Defendant
Walker, also violates 18 USC1513( e) because it was meant to retaliate
against Plaintiff for providing information to state and federal law
enforcement about the conduct of the Defendants. Indeed, both Defendants
Walker and Frey complained bitterly that Plaintiff was "fucking" with them,
Exhibit T, when all Plaintiff ever did was provide information to law
enforcement officials and the Courts about their conduct. Section 1513( e)
provides as follows:
(e) Whoever knowingly, with the intent to retaliate, takes any action harmful
to any person, including interference with the lawful employment or livelihood
of any person, for providing to a law enforcement officer any truthful
information relating to the commission or possible commission of any
Federal offense, shall be fined under this title or imprisoned not more than
10 years, or both. (emphasis added).
11
26. Defendants Hoge and Walker assert that the obstruction
of justice claims
cannot be predicate acts because there was no "official proceeding"

involving Plaintiff. However, there were official proceedings
federal involvement.
therefore
First, the swattings
unannounced
as well as
occurred across state lines, which
brought them under the jurisdiction
Second, the FBI was investigating
pending
of federal law enforcement.
the swattings and in fact came
to Plaintiffs home to interview him about the swattings.
Third,
87 Congress Members and at least one US Senator wrote letters to the

Attorney General requesting
a federal criminal investigation.
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
actions are also
by 18 USC 1512(b), which includes engaging "in misleading
conduct toward another person, with intent to influence, delay, or prevent

the testimony of any person in an official proceeding,
proceeding
harassing
which includes "a
before Congress." They also violated section 1512( d) by

Plaintiff for years so he would not seek redress in federal courts or
talk to federal law enforcement
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
officials. They sued, harassed,
him with prison, with job loss and caused death threats
against him for seeking redress.
Defendant Walker assaulted
him in the
12
Montgomery County Circuit Courthouse so severely that he had to go to the

Emergency Room at Suburban Hospital, where he was treated and given
medicine for contusion to the eye, pain and dizziness. And when Plaintiff
contacted the police about the assault, Defendant Walker created the false
narratives
and conceived the National Bloggers Campaign against Plaintiff in
retaliation
for seeking redress and the administration
constitutes
obstruction
of justice and retaliation
of justice . All ofthis
under the "Omnibus Clause"
of18 USC 1503, which states:

Whoever ... corruptly or by threats or force, or by any threatening letter or
communication, influences, obstructs, or impedes, or endeavors to influence,

obstruct, or impede, the due administration ofjustice, shall be fined not more
than $5,000 or imprisoned
added).
not more than five years, or both." (emphasis
28. The Defendants also engaged in a conspiracy to threaten, assault and

intimidate
Plaintiff and therefore
their conduct is prohibited
by 18 USC
1512(k).
29. All of these obstruction
of justice statutes constitute
predicate acts under
RICO.
Plaintiff
Properly
Alleged the Existence
ofa RICO Enterprise
30. Plaintiff has alleged in the Complaint that the National B10ggers Club is a
fraudulent
Enterprise
profit when it is not
because it falsely portrays
itself as a 501(c)(3)
It raises money based on that fraudulent
and it uses false accusations
non-
representation
of criminal activity by Plaintiff to fleece people
out of money to run its fraudulent activities.
It engages in wire and mail
fraud, as well as money laundering.
13
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).
34.18 U.S.c.91961(1) defines "racketeering activity" to include "any act or

threat involving ...extortion ... [or] any act which is indictable under any of
the following provisions of Title 18, United States Code: ...section 1341
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
which are "acts"
included in the definition of "racketeering
activity." The Complaint alleges
other predicate acts including obstruction
acts. These acts were done in
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).
In Wang Laboratories v. Burt, 612 F.Supp. 441 (1984),
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
of18 U.s.C. 91964(c)."
495 (E.D.PA 1983) (Plaintiffs

defendant's
See Kimmel v. Peterson, 565 F.Supp. 476,
allegations of monetary
losses as a result of
fraud sufficiently allege "injury" under 18 U.S.C.91964(c)).
Hellenic Lines, Ltd. v. O'Hearn, 523 F.Supp. 244, 248 (S.D.N.Y. 1981) (the
corporation
monetary
36. Defendants
was injured for purposes of RICO if, as alleged, it sustained

damages).
Hoge and Walker joined the Enterprise
and committed
predicate
acts in order to cause maximum harm to Plaintiff, his livelihood, his property,
and his employer.
In fact, one their main goals in the Enterprise
Plaintiff out of business and intimidate

Amendment
right to redress.
was to drive
him from exercising his First
In Northeast Women's Health Center v.
15
McMonagle, 868 F.2d 1342 (3rd Cir. 1989), the Court addressed
situation where activists used threats, intimidation,
a similar fact
violence and extortion in
an attempt to drive a health clinic out of business.

The "right" on which the Center's case was predicated was the right to
continue to operate its business. The Center's extortion claim was that
Defendants used force, threats of force, fear and violence in their efforts to
force the Center out of business. The court told the jury that, "[s]pecifically,
defendants are charged with attempting and conspiring to extort from the
Center its property interest in continuing to provide abortion services[;]
from its employees, their property interest in continuing their employment
with the Center[;] and from patients, their property interest in entering into a
contractual relationship with the Center."
Rights involving the conduct ofbusiness are property rights. As we
pointed out in United States v. Local 560, 780 F.2d 267,281 (3d Cir. 1985), ...
other circuits which have considered this question are unanimous in
extending the Hobbs Act to protect intangible, as well as tangible,
property. (Citations omitted). It is, of course, no defense to extortion that
Defendants did not succeed in their ultimate goal, although, as McMonagle's
own letter admitted, Defendants' activities did contribute to the Center's loss
of its lease at the Roosevelt Boulevard location .... Attempted extortion and
conspiracy to commit extortion are crimes under the Hobbs Act, see 18 U.S.c.
~ 1951(a), and "any act which is indictable under [the Hobbs Act]" is a
predicate offense under RICO. 18 U.S.C.~ 1961(1)(B).
37. Plaintiff had a "property
interest" in continuing his employment
as the
director of a non-profit that he had worked at for the previous eight years.
He had a "property
interest" in being able to raise funds for that business to
pay his salary and the other salaries and expenses of the business.
Defendants
Yet,
Hoge and Walker conspired with the other Defendants, and
attempted
and engaged in conduct intended to deprive Plaintiff of those
property
interests. They have stated many times that they want to destroy
the non-profits
by stopping their funding and urged others to demand the
same. See e.g., Exhibit M and N.
16
35. Clearly, Plaintiff has alleged injury to his business reputation,

and his loss of revenues to satisfY the injury requirement
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
with a state actor who acted under color oflaw under
42 USC 1983 by violating a victim's Constitutional

U.S. 42, 48 (1988). "The traditional
law requires that the defendant
right. West v. Atkins, 487
definition of acting under color of state
in a ~ 1983 action have exercised power
'possessed
by virtue of state law and made possible only because the
wrongdoer
is clothed with the authority
of state law.'" Id. at 49, quoting
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
to state law." Atkins, 487 U.S. at
50. See also Griffin v. Maryland, 378 U.S. 130, 135 (1964) ("If an individual is
possessed
of state authority
and purports
action is state action. It is irrelevant
to act under that authority,
his
that he might have taken the same action
had he acted in a purely private capacity or that the particular action which
he took was not authorized
by state law"). Defendant Frey acted under color
of state law when he relied on the authority of his State role as a prosecutor
to threaten
to and actively criminally investigate
Plaintiff. A nexus exists
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
and Defendant Frey's abuse
for Los Angeles County.

17
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
Nadia Naffe after she gave Plaintiff evidence about Defendant
O'Keefe targeting Plaintiff. Exhibit R.

39. In an email from Defendant Frey to Defendant Walker on December 22, 2011,
Frey complimented
Walker on a pleading and then said, "This kicks ass. They
are going to go apeshit
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
author, professor and blogger.
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
that he has to know will never get answered.
But
mostly he is trying to make me miserable, publishing my address, hirinB

people to swat me, Google bombing me, defaming me, mocking me and so on .
.... I just want you to understand
have happened
that Kimberlin is behind all the things that
to me, and that he is truly dangerous and a psychopath."
(emphasis added). Exhibit T. Of course, Plaintiff never hired anyone to swat

Defendant Frey, never posted his address, wasn't behind anything. and never
even published online a single word or tweet about Frey.
41. In other emails to Walker and some of the other Defendants, he states that
his office at the LA County District Attorney is "investigating"
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
LA County District Attorney's
Office and communicated
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,
but he also repeatedly
in his private emails with co-
imputed on his blog that Plaintiff swatted
him. And this false accusation signaled his co-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"
The person who wrote it

by Defendant and Deputy
District Attorney Frey against any blowback.

49. Defendant Frey routinely refers to himself on his blog as "Patte rico," a
"prosecutor
in Los Angeles County ...." http://patterico.com/aboutpatterico.
Readers, commenters
and reporters
all believe that Frey's well-known
online
alter ego "Patterico" is a digital extension of John Patrick Frey, the Los
21
Angeles County Deputy District Attorney. In fact, Defendant Frey identifies

himself as "Patte rico" and describes "Patte rico" as a prosecutor in Los
Angeles County who prosecutes criminals. In his blog posts, Defendant Frey
has made clear that "Patte rico's Pontifications" is the product of a Deputy
District Attorney. Frey has indicated that "Patterico's Pontifications" is linked
to his position as a prosecutor. In a September 9,2009 blog post entitled
"Patte rico Banned at the L.A.Times???," Frey wrote "(ajre they banning all
Deputy District Attorneys? Or just the ones that make them look like fools on
a daily basis?" Id. Frey's post shows that he perceives any purported ban on
"Patterico" to be related to Frey's position as Deputy District Attorney. Id.
Due to Frey's repeated references to his position as a prosecutor, other
media outlets have viewed "Patterico's Pontifications" as inextricably linked
to his position as a deputy district attorney. Moreover, Frey frequently
invokes his position as a prosecutor to lend substance and weight to his
opinions, including claiming that "we Deputy DA'sare suspicious by nature;"
disparaging a commenter's critique on his blog post by stating "(ijn your
world, every prosecution is of an innocent person ... your world has nothing
to do with the world I know, and you are clearly 100% ignorant of the nature
of the process you are discussing" asserting that "[bjeing a prosecutor is
about presenting the truth" (Id.); and discussing inside information from the
DA's Office. "Patte rico's" invocation of his authority as a prosecutor is subtle
and Frey has intentionally crafted "Patterico" to give the impression that
"Patterico" speaks casual, offhand, and is almost always followed by a
22
"disclaimer." But when "Patterico" continuously

himself as a prosecutor,
and extensively identifies
when he uses his public position to exert influence
and lend credibility to his opinions, and when he threatens

prosecution,
Frey has transformed
personification
criminal
"Patte rico" into the virtual, online
ofthe Deputy District Attorney john Patrick Frey. Thus, when
"Patterico" speaks, he speaks with the authority
and prestige ofthe Office of
the District Attorney. By cloaking himself with the power of his government
position, "Patterico" placed readers and Internet observers
expressions
on notice that his
carried the weight and gravitas of a prosecutorial
office of the
state government.
Like the off-duty police officer who flashes his badge and
uses a department
issued handgun, "Patterico" openly displays his
credentials
as a prosecutor.
When "Patte rico" issued his threat to investigate
and imprison Plaintiff for swattings, the statement

of authority
conferred
was uttered with the force
on Frey by virtue of his position as a prosecutor
on a
matter in which Frey was uniquely endowed to act.

In Donnelly v. DeChristoforo, 416 U.S. 637,648 n.23 (1974), the Supreme
Court cited to opinion of Chief justice Tauro of the Supreme judicial Court of
Massachusetts:
"Unlike a newspaper, the prosecutor ostensibly speaks with the authority of
his office. The prosecutor's' personal status and his role as a spokesman for
the government tend( ed) to give to what he ... (said) the ring of authenticity .
.. tend(ing) to impart an implicit stamp of believability.'" Hall v. United States,
419 F.2d 582,S83-584 (5th Cir.).
Defendant Frey's threats were not made by a private individual in his
personal capacity who happened
to also work as a prosecutor
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
given him by virtue of his state office
and imprison Plaintiff for possible
criminal violations. "(Alction under color of law is always identified by

reference to the relationship
his state-created
between defendant's
alleged misconduct
and
duties and powers, rather than the status of the parties."
Anthony, 845 F. Supp. at 1401.See McDade v. West, 223 F.3d 1135,1140
(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
to act in the performance
of his or her
v. Knowles, 113 F.3d1114, 1117 (9th Cir. 1997)
(public official's alleged wrongful conduct not performed

law if conduct is not related to performance
under color of state
of official duties); Dang Vang v.
Vang Xiong X Toyed, 944 F.2d 476, 480 (9th Cir.1991) ("For conduct to relate
to state authority,
it must bear some similarity to the nature of the powers
and duties assigned to the defendants,"
quoting Murphy v. Chicago Transit
Authority, 638 F. Supp. 464, 468 (N.D. Ill. 1986)). By threatening

and conducting a criminal investigation
and acted with the authority
his exclusive, state-authorized
of criminal complaints.
to conduct
into Plaintiff, Defendant Frey spoke
of his office on a subject that uniquely related to

duties: criminal investigation
His threats of criminal investigation
and prosecution
and
24
imprisonment
were made in context of extensive efforts to intimidate
and
silence Plaintiff.
51. Defendant Frey clearly intended to prosecute
though he was not successful.
Therefore, the "color of law" analysis applies
because the wrongful act was completed

investigations
whatever
and imprison Plaintiff even
when "Patterico" began his
and issued his threats to imprison Plaintiff for swattings and
other concoction he had in his mind. For purpose of the ~ 1983
"color of law" analysis, Plaintiff need only show that the wrongful act alleged
is related to the performance
of the state actor's duties. Anderson v. Warner,
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 his duties"); Anthony, 845 F. Supp. at1400 ("(w]hether
a state employee acts under color oflaw turns on the relationship

wrongful act to the performance
of the defendant's
of the
state duties"). The acts to
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,
was directly related to Defendant Frey's
as a Deputy District Attorney to investigate
and
violations oflaw. Because Defendant Frey abused the authority
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
actions, including criminal
25
prosecutions,
for speaking out or exercising the right to redress. Cf., Hartman
v. Moore, 547 U.S. 250, 256 (2006). To show a First Amendment

Plaintiff must plead facts that demonstrate
chilled" his speech or right
substantial
violation,
that Frey's actions "deterred
redress and that such deterrence
or motivating factor" in Defendant Frey's conduct
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).
The relevant inquiry is "whether an official's acts would chill
or silence a person of ordinary firmness from future First Amendment

activities." Lacey, 693F.3d at 916-17. Plaintiff must allege facts ultimately
enabling him to "'prove the elements of retaliatory
injury: with causation being 'understood
animus as the cause of
to be but-for causation.'
Id. at 917,
citing Hartman, 547 U.S. at 260.

52. In the instant case, Defendant Frey, because he is prosecutor,
leader of the conspiracy to violate Plaintiffs constitutional
defendants
looked to him for leadership
rights. The co-
and followed his direction, advice,
both private and public, to falsely accuse Plaintiff of swattings

imprison Plaintiff. What greater violation of constitutional
to a living person than being imprisoned
became a
in order to
rights could occur
based on a false criminal charge?
Defendant Frey called and met with the FBI and told them to arrest Plaintiff
for the swattings, and Frey had his supervisors
Attorney's
Office criminally investigate
at the LA County District
Plaintiff in the hope that they would.
26
find something
on which to imprison him.
53. Clearly Defendants
Hoge, Walker and the other Defendants conspired with
Frey to violate Plaintiffs civil rights by publicly and privately pushing the
false narrative
concocted by Frey that Plaintiff was involved with swattings.
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
their life's work over
of tweets and blog posts smearing
Plaintiff, their letters to Congress Members stating that Plaintiff was the
swatter and should be imprisoned,
and their false criminal charges against
Plaintiff. This call for imprisonment
was taken from Defendant Frey who
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
Hereby Withdraws Fraud and Negligent Misrepresentation
55. Plaintiff hereby withdraws
this Count of the Complaint for all Defendants.
Plaintiff Has Properly Alleged Intentional

36. Defendants
Infliction
of Emotional
Distress
Hoge and Walker callously argue that Plaintiff has not made any
allegation to demonstrate
infliction of emotional distress.
This is without
merit
27
37.1 The Restatement
(Second) of Torts, 46 at 71, provides: ("(i) One who by
extreme and outrageous
conduct intentionally
or recklessly causes severe
emotional distress to another is subject to liability for such emotional

distress, and if bodily harm to the other results from it, for such bodily harm."
In comment (i) to the Restatement
it is expressly stated that this rule also
covers a situation where the actor knows that distress is certain, or

substantially
certain, to result from his conduct. In order to satisfy the element
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
engaged in the business of investigating cases for attorneys. She deceitfully

obtained the plaintiffs
photograph
for the purpose of permitting
a criminal
defense lawyer to show it to the victims in several child molesting cases in an

effort to have them identity the plaintiffas
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
by the police, called
as a witness and required to explain the circumstances
which the defendant
had obtained his photograph.
suffered shock, mental depression,
nervousness
28
under
As a result, plaintiff
and great anxiety as to what
people would think of him and he feared that he would be accused of

molesting the boys. The court, in concluding that a cause of action had been
made out, said: "Most ofthe courts which have been presented
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
causes another severe emotional distress ...."

39.ln the instant case, Plaintiff has alleged that the Defendants, including Hoge
and Walker, engaged in outrageous
publishing the defamatory
conduct, demanding
swattings,
and extreme conduct by falsely
statements
accusing him of crimes and nefarious
that he be investigated,
publishing tens ofthousands
arrested
and imprisoned
for
of tweets and blog posts smearing
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
to extort his employer into firing
with false narratives
sanctions in the amount of tens of thousands
to attack him, filing for

of dollars and imprisonment,
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
calls to him, his family and his neighbors. No person in a civilized
society should be made to endure such conduct

40. Moreover, Defendants conspired with the other Defendants to imprison
Plaintiff based on their false narratives
29
that Plaintiff was involved with
swattings.
This constitutes
extremely outrageous
conduct that intentionally
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
incite a lynch mob to attack relentlessly
and daily with tens
of tweets and posts and articles, and stalkers over a period of
years. This is atrocious and has absolutely no place in a civilized society.

41. Not a day goes by where Plaintiff is not attacked, online or in person, by one
or more of the Defendants. Defendant Walker came to a court hearing in
Montgomery County Circuit Court and, after the proceeding to which he was not
a party, followed Plaintiff out of the courtroom and assaulted him so severely he
ended up in the Emergency Room at Suburban Hospital. This resulted in days
off of work and a fear that Defendants will again assault Plaintiff or his
family. Defendants Walker, Hoge, McCain and Ali have stalked Plaintiff in
public places. Defendants Walker, Hoge and DB Capitol Strategies have filed
numerous
false criminal and civil actions against Plaintiff over a two-year
period, all which have been dismissed or denied.
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.
They have attacked Plaintiffs employer
and those who donate to that non-profit.
The Defendants have tried to get
Plaintiff fired. They have attacked Plaintiffs wife and teenage daughter and
even reporters
who have written favorably about Plaintiff. They have even
attacked prosecutors
who have refused their frivolous charges, Defendant
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.
Plaintiff has had to install robust security devices and video
cameras at his home and office, and take precautions

young child should have to be subjected
to, all because the Defendants
created a lynch mob based on false narratives

family on a continuous
multi-year basis.
for his family that no
to terrorize
Plaintiff and his
This clearly demonstrates
Defendants, including Hoge and Walker, intentionally
have
that the
inflicted emotional
distress.
Wherefore,
for all the above reasons, Plaintiff has demonstrated
to relief and therefore
that he entitled
that this Court should deny Defendants Hoge and Walker's
Motions to Dismiss.
Respectfully s
Brett Kimber.
8100 Beech
Bethesda, MD
Certificate
of Service
I certify that I have served a copy of this motion on Defendants Stranahan,

Patrick Frey, Mandy Nagy, by email, and on Defendants
DB Capitol Strategies,
Hoge, The Franklin Center, and Walker by First Class mail this 17th day of
January, 2014.
Brett Kimberli
31
EXHIBIT F
TQm sent a message using the contact form at

.h:tp:llwww.jtmp.org/jtmp/index.php?q=contact.
Case 8:13-cv-03059-GJH Document 29-2 Filed 01/17/14 Page 25 of 27
Don't go there.
Report as inappropriate:
http://www.jtmp.org/jtmp/index.php?q=mollom/report/rnollorn
120524824af8c7a046
content I
Visitor Analysis & System Spec

Search Referral: www.google.com - justice through music project <http://
WWW.9oogle.com/search?sa=t&rct=j&q=justice%20through%20rnusic
%20project&soUrce=web&Cd=1&ved=OCFOQFjAA&Url=http%3A%2F%2Fwww.jtmp.org
%2F&ei=ywu9T-K8F6iyiQLK3dDfDQ&usg=AFQjCNEHSaSYGfU3fTgatnLzOesqrnL1
Lwg> #1
Host Name:Browser:Firefox
3.6
IP Address:146.233.0.202
- [Label IP Address] <http://statcounter.com/
p6887348/add-ip-address-label/?ip_address=146.233.0.202&return_url=
%2Fp6887348%2Fmagnify%2F%3Fip_number%3D2464743626>
Operating System:WinXp
Location:Whittier,
California, United StatesResolution:1280x1024
Returning Visits:OJavascript:Enabled
Visit Length:8 rnins 29 secsISP:Los Angeles Sheriff's Department
Navigation Path
DateTirneWebPage
www.google.com - justice through music project <http://www.google.com/
search?sa=t&rct=j&q=justice%20through%20music
%20project&soUrce=web&cd=1&ved=OCFOQFjAA&url=http%3A%2F%2Fwww.jtmp.org
%2F&ei=ywu9T-K8F6iyiQLK3dDfDQ&Usg=AFQjCNEHsasyGfU3fTgatnLzOesqrnL1Lwg>
#1
May 2306:59:38 PM www.jtmp.org/jtmp/index.php
<http://www.jtmp.org/jtmp/
index.php>
Page 1 of 2
EXHIBIT G

Thursday, January 16, 2014 4:31 PM
Subject: Walker's sick, twisted obsession with my family is very disturbing and dangerous
Date: Wednesday, December 18, 2013 10:13 PM
From: Justice Through Music <justicejtmp@comcast.net>
To: Patrick Ostronic <fpolaw@fpolaw.com>,
Mark Del Bianco <mark@markdelbianco.com>
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
The above-styled case came on to be heard this day upon the

filing by the
) PI intiff and/or
Defendant of a Motion to
I
).
I .
I cf
; and
upon consideration of the Motion antj the evidence presented, if any,
and argument of counsel, it is therefore
...
ENTERED this
(20,.1
of
reed/ Objected to:
Counse for Plaintiff/Plaintiff

1.
Seen
t'E:
. ITeOUP:"1
=-_---':_
-=
to:
sit- k'l
'<-;/ 0.)..-
..
. Counsel for Defendant/Defendant
EXHIBIT I

MILWAUKEE DIVISION
Plaintiff,
v.
Defendants.
DECLARATION OF AARON J. WALKER, ESQ.
1.
My name is Aaron J. Walker, Esq., and I make these statements based upon my
own personal knowledge unless otherwise indicated. I am a resident of Virginia, admitted to

practice law and a member of the bar in good standing in Virginia and District of Columbia, and
I am admitted to practice before this Court, the Eastern District of Virginia and the Fourth
Circuit Court of Appeals. 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.
I represent Defendants Palmer and Johnson in the above-captioned case.
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).
These Defendants have also agreed to pay out-of-pocket
expenses so that my representation only costs my time, not my money.

4.
I did not undertake this representation lightly.
I knew that I had truthfully
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
Kimberlin to file a declaration against me. In my experience, Mr. Kimberlin is a pathological

liar, often lying when it was virtually assured that he would be caught. The opposition to the
Plaintiffs motion to disqualify that this declaration is attached to documents only some of the
evidence of Mr. Kimberlins mendacity.
6.
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
any time in 2011.

8.
Mr. Kimberlin claims that I represented Seth Allen in a Montgomery County
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.
I have never committed any act that would constitute
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
9.
Mr. Kimberlin also claimed that I represented Mr. Allen under a false name. I did
10.
Mr. Kimberlin characterized me in paragraph 1 of his declaration as the
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
12.
Mr. Kimberlin has also claimed that every one of the depictions on the website
were vile in one way or another.
Actually, since the mere depiction of Mohammed was
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
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
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.
Still rebutting paragraph 1 of the Mr. Kimberlins Declaration, he claims that I
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.
However, Mr. Kimberlin evidently forgot that there were security
cameras in the courthouse and when the footage emerged, I was exonerated completely.
14.
With that footage demonstrating my innocence, I went public with my story of
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
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.
In addition to that, Mr. Kimberlin also attempted to get a restraining ordercalled
a Peace Orderagainst me based on his false allegation of assault and harassment. At an ex

parte hearing held on the same date as the alleged assault, the Montgomery County District Court
found that I had harassed and assaulted Mr. Kimberlin and granted a preliminary Peace Order
against me on that basis.5 At a final Peace Order hearing on February 8, 2012, however, I was
allowed to speak on my own behalf. I admitted that I had defended myself against the Plaintiff
but I also asserted that I had done no harm to him and that I had acted in self-defense. The court
found that no assault had occurred, plainly crediting my story over Mr. Kimberlins. In previous
litigation I have filed certified copies of 1) Mr. Kimberlins Peace Order petition, 2) the
Temporary (ex parte) Peace Order granted after that court found that assault had occurred, and 3)
the Final Peace Order finding that no assault had occurred.6 These documents can be viewed as
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
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
Healthcare Management, Inc. for prejudice toward Muslims or incompetence.
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
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
effort to prove that I had.
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
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
of 2012, an anonymous internet writer named @OccupyRebellion wrote [w]hile @stranahan is

in Tampa this week, should Texas rapists be told where to find his wife since he supports the
rapes of everyone else?
24.
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.
I reported this message, which I considered to be a rape threat directed at Mrs.
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
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
websitewrote the following:

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.
I apologize to this Court for including this crude language but I do not believe the full impact of
what the Plaintiffor a person writing on the Plaintiffs website under the Plaintiffs name
wrote would be conveyed unless the language is quoted as is. I reported this comment to readers
and stated my opinion that this amounted to a rape threat, deducing that Stranny was a
transphobic reference to Lee Stranahan.
28.
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
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.
Further, I do not belong to and I am not a member of any cult or cult of
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
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.
Executed on March 8, 2016 in
Manassas
(city)
Virginia
.
(state/territory)
s/ Aaron J. Walker
(signature)
13
EXHIBIT J

MILWAUKEE DIVISION
Plaintiff,
v.
Defendants.
DECLARATION OF SARAH PALMER
1.
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.
I am being represented in the above-captioned matter by Aaron J. Walker, Esq.
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.
Executed on March 7, 2016 in
Reidsville
(city)
North Carolina
(state/territory)
s/ Sarah Palmer
(signature)
2
EXHIBIT K

MILWAUKEE DIVISION
Plaintiff,
v.

Defendants.
DECLARATION OF LEE STRANAHAN
1.
My name is Lee Stranahan, and I make these statements based upon my own
personal knowledge unless otherwise indicated. I am a resident of Texas. 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.
I am a reporter, working at all relevant times for Breitbart News and for own
websites including http://leestranahan.coml.

3.
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
protesters, I received threats.

6.
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.
To explain the context of that statement, "@stranahan" is my identity or "handle"
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.
Because I had not 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
Hollywood Reporter on August 29. An article there said in part:

TAMPA, Fla. -- Another documentary is drawing controversy at the Republican
National Convention -- the filmmakers of Occupy Unmasked, starring the late
Andrew Breitbart, say they've received dozens of threats of physical violence in
advance of Thursday's screening of the critical look at the Occupy Wall Street
movement.
Some of the messages target Brandon Darby and Lee Stranahan, two former
leftists who appear in the film, according to a spokesperson for Citizens United
Prods, the company behind the film. "We'll be legitimately raping Brandon Darby
and Lee Stranahan for the next several days while they are tied up with the movie
premier at the RNC," reads an email fromoccupyaunmasked2012@gmail.com.
The email includes Darby's and Stranahan's cell phone numbers.
9.
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
website and identified as being written by him in which he defended @OccupyRebellion by

saying that "She doesn't TELL anyone where your wife is."
12.
Subsequently, the following appeared on Mr. Schmalfeldt's Twitter timeline:

Bill Schmalfeldt
Iy Chali llg t L StrmwhiUl.

I thueu brt> ll. tl't> t. alias. T
-I' ;2-1-. hm' ah he
(:.11-1)
Xi\ --:-:!-tC
gl \\' [ "H \1<\
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
Executed on March 9,2016 in _----eD=al=las=-
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)
Olson v. Bemis Co. (E.D. Wis., 2013)
STEVEN OLSON, Plaintiff,

v.
BEMIS COMPANY, INC. et al.,
Defendants.
it through the initial steps of the grievance

process. By letter dated March 19, 2012, Local
Union
Representative
Chris
Haddock
informed Olson that based on the merits of
the case, the Local Union Grievance
Committee had decided not to take his
grievance to arbitration. By that time, Olson
had retained Attorney Peter Culp to represent
him. On March 20, 2012, Attorney Culp sent a
letter to the Local offering to represent both
Olson and the Union at the arbitration,
without cost to the Union, if the Union would
request arbitration of the grievance. In his
letter, Attorney Culp expressed the opinion
that Olson's termination was without just
cause and referenced the Union's duty of fair
representation.
Case No. 12-C-1126

EASTERN DISTRICT OF WISCONSIN
SO ORDERED: April 26, 2013
Header ends here.
DECISION AND ORDER DENYING
DEFENDANTS'
MOTION TO DISQUALIFY COUNSEL
Plaintiff Steven Olson filed this action
alleging that his employment at Defendant
Bemis Company, Inc., was terminated
without just cause in violation of the
collective bargaining agreement and that his
union, Defendant United Steel, Paper, and
Forestry, Rubber, Manufacturing, Energy,
Allied Industrial, and Service Workers
International Union and United Steel, Paper
and Forestry, Rubber, Manufacturing,
Energy,
Allied-Industrial,
and
Service
Workers International Union, Local 2-0148
(collectively, the Union) breached its duty of
fair representation in violation of Section 301
of the Labor Management Relations Act
(LMRA), 29 U.S.C. 185. Presently before the
court is the Unions' motion to disqualify
Olson's attorney, Peter Culp, and his law firm,
Dempsey Law Firm, L.L.P, from representing
him on the ground that Attorney Culp is likely
to appear as a witness at trial. For the reasons
that follow, the motion will be denied.
Haddock sent a letter to Culp in reply in

which he stated that the Local had already
decided not to pursue arbitration of Olson's
grievance and would not change its
assessment of the merits because Olson had
retained an attorney. Haddock also explained,
however, that Olson could take his grievance
before the full membership at the upcoming
Union meeting and the members could vote
on whether to take it to arbitration. In a
subsequent letter, Haddock directed Attorney
Culp to refrain from contacting himself or any
other Local members and instructed that any
further communications should be directed to
the International's attorney.
Olson presented his grievance at the
March 21 Union meeting and offered to pay
half the cost if the Union would take his
grievance to arbitration. The membership
voted to take the matter to arbitration, and
Haddock informed Olson that the Union
would pay the fees for the arbitrator, the
transcript and the witnesses, and he would be
responsible for the attorneys fees. Haddock
also advised Bemis of the Union's decision to
seek arbitration of the grievance and
informed the company that Attorney Culp
would be its representative at the hearing.
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-
In early April, the Company offered to

settle the grievance by either reinstating
Olson or paying him $10,000. Haddock
informed Olson of the settlement offer and
claims that Olson agreed to settle for
$20,000. Haddock claims he then presented
the company with Olson's counteroffer, and
the company agreed. The company drafted a
settlement agreement, a copy of which was
provided to Olson.
Wisconsin Supreme Court Rule (SCR)

20:3.7 generally prohibits an attorney from
representing a client at a trial in which the
attorney is likely to testify as a witness:
(a) A lawyer shall not act as
advocate at a trial in which the
lawyer is likely to be a necessary
witness
unless:
(1) the testimony relates to an
uncontested
issue;
(2) the testimony relates to the
nature and value of legal
services rendered in the case; or
(3) disqualification of the lawyer
would work a substantial
hardship
on
the
client.
(b) A lawyer may act as
advocate in a trial in which
another lawyer in the lawyer's
firm is likely to be called as a
witness unless precluded from
doing so by SCR 20:1.7 or SCR
20:1.9.
Olson denies that he ever agreed to settle

his grievance for $20,000. In late April or
early May, Attorney Culp sent both the
company and the Union a settlement
agreement under which the Company was to
pay Olson $37,500, including $2,000 to
Attorney Culp's trust account for attorney's
fees. The Company rejected Culp's offer, and
by letter dated May 7, 2012, Haddock
informed Attorney Culp that the Union
intended to accept the Company's $20,000
settlement offer before it expired. On the
same day, the Union and the Company signed
the
Company's
settlement
agreement.
Claiming that the Union violated its duty of
fair representation, Olson brought filed this
action. The Union now seeks an order
disqualifying Attorney Culp from continuing
to represent Olson on the ground that he will
likely be a witness at trial.
The Union argues that the rule extends to

pretrial proceedings as well and that Attorney
Culp should be disqualified from representing
Olson at this point to avoid any prejudice to
the defendants or delay in the case. The
Union contends that it is clear that Attorney
Culp will be a necessary witness at trial
because of his settlement negotiations in the
underlying grievance in April and May 2012.
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.").
The Union primarily relies on Finn v.

Harbor Metal Treating, Inc., Cause No. 3:09CV-130 CAN, 2009 WL 3642753 (N.D. Ind.
Oct. 29, 2009), and Freeman v. Vicchiarelli,
827 F. Supp. 300 (D.N.J. 1993), for the
proposition that the "attorney-witness rule
operates both during trial and during pre-trial
discovery and negotiations." 827 F. Supp. at
303-04. But Finn relied, at least in part, on
Freeman's holding that the rule applied to
pretrial proceedings as well as at trial. 2009
WL 3642753 at *3. And Freeman's
application of the attorney-witness rule was
based on an ethics opinion published by an
Page 4
-2-
advisory committee that construed New

Jersey's professional rules of attorney
conduct. Id.
of the attorney-witness' participation during

pre-trial. ABA Comm. on Ethics & Profl
Responsibility, Informal Op. 89-1529 (1989).
Wisconsin's SCR 20:3.7, however, at least

as it is understood by the State Bar's
Professional Ethics Committee, does not
extend to pretrial proceedings. As explained
by a November 2010 memorandum opinion
published by the Wisconsin State Bar
Professional Ethics Committee:
This interpretation of the attorneywitness rule appears to be the majority

approach in the courts as well. See, e.g.,
DiMartino v. Eighth Jud. Dist. Ct. ex rel.
Rivara-Rios, 66 P.3d 945, 946-47 (Nev.
2003) ("In most jurisdictions, a lawyer who is
likely to be a necessary witness may still
represent a client in the pretrial stage. Some
courts, however, have disqualified counsel in
the pretrial stage. We believe the majority
approach is the better reasoned one."); see
also Droste v. Julien, 477 F.3d 1030, 1035
(8th Cir. 2007) (noting that in most
jurisdictions, a lawyer who is likely to be a
necessary witness may still represent a client
in the pretrial stage and finding district court
abused its discretion in disqualifying attorney
before trial). It is also consistent with the
general rule
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.
Wis. State Bar Prof'l Ethics Comm.,

Memorandum Op. M-10-02 (Nov. 1, 2010)
(Lawyer
as
Witness),
available
at
http://www.wisbar.org/formembers/ethics/E
thics%20Opinions/M-10-02.pdf.
The American Bar Association (ABA)
likewise interprets the rule as applying only to
trial and not pretrial proceedings. The ABA
Committee on Ethics and Professional
Responsibility has offered the following
reasons for permitting an attorney-witness to
continue representation during pre-trial: (1)
the case may be settled in advance of trial, (2)
the attorney's testimony may be replaced with
other evidence at trial, (3) the client may
choose to forego the attorney's testimony, (4)
the rules allow the disqualified attorney's firm
to continue representation, and (5) the
attorney-witness may have the most
knowledge about the case and the client
would likely be prejudiced from the exclusion
It is also unclear at this stage whether

Attorney Culp will be a necessary witness at
trial. The Union argues that Attorney Culp
must testify about his involvement in the
settlement negotiations between Olson, the
Local Union, and Bemis. Attorney Culp, the
Union contends, was a key participant in the
negotiations and certain conversations and
evidence can only be established through his
testimony. For instance, already in the course
of discovery, Attorney Culp requested that the
-3-
defendants admit that Paul Footit, a staff

representative of Bemis, received emails from
Attorney Culp requesting that he provide
disciplinary and grievance records. Footit
submitted a declaration that he has no record
of any such emails and that he does not
recollect receiving any emails. (Footit Decl.
7, ECF No. 50.) The Union argues that
because Attorney Culp is the only person who
can authenticate that he sent any emails to
Footit, he is likely to be a necessary witness at
trial. In addition, the Union asserts that
Attorney Culp is the only witness that can
confirm Olson's rejection of Bemis' settlement
offer. The Union notes that in another request
to admit, Request No. 144, Attorney Culp
asked the defendants to admit that "[o]n May
2, 2012, the plaintiff, by and through his legal
counsel, informed Bemis Company, Inc.
[t]hat the proposed terms of settlement of the
Grievance were rejected." (Robbins Decl. Ex.
A at 13, ECF No. 35.)
may renew its motion if Attorney Culp does

not withdraw on his own.
The Union argues that Attorney Culp
should be disqualified now so that it will not
be impeded in its efforts to depose him. But it
is not clear why the Union cannot take
Attorney Culp's deposition now if it believes
he has relevant, unprivileged information. As
the Eighth Circuit observed in Droste, the
rule against an attorney acting as a witness is
intended to avoid jury confusion and possible
prejudice to the opposing party if one party's
attorney is permitted to act both as an
advocate and a witness. 477 F.3d at 1036. But
the jury is usually not privy to pretrial
proceedings. If Union takes Attorney Culp's
deposition now and Attorney Culp later
withdraws or is disqualified, the fact that he
represented Olson previously in the action
would not have to be conveyed to the jury. In
short, unlike the court in Finn, this court does
not question the ability of the defendants to
meaningfully question Attorney Culp at a
deposition even if he is still representing
Olson. For practical reasons it may be the
better practice, as the above-referenced ABA
report states, that another lawyer serve as
counsel to the client at such a deposition. But
there
is
no
requirement
that
the
attorney/witness withdraw.
As Olson points out, however, other

witnesses to his rejection of the Company's
$20,000 are available, such as Olson and his
spouse. Other witnesses, such as Union
representatives or the
Page 7
Union members present at the meetings can
also testify to facts in issue without the need
to resort to Attorney Culp's testimony. But
even if the Union is correct and Attorney Culp
is a necessary witness at trial, there is still no
need under the Wisconsin rule governing
professional responsibility of lawyers to
disqualify him at this point. See Mercury
Vapor Processing Tech., Inc. v. Vill. of
Riverdale, 545 F. Supp. 2d 783, 788 (N.D. Ill.
2008) (denying disqualification motion
without prejudice reasoning that counsel
could continue representation during pretrial proceedings and it was too conjectural to
determine whether counsel's testimony would
be necessary). If it becomes clear after the
conclusion of discovery that Attorney Culp's
testimony will be necessary, then the Union
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-
permitted because of a late decision by

Attorney Culp to withdraw. Olson and his
attorney are on notice that a request to
adjourn a scheduled trial for such reason will
not be considered so that any such decision
will be made in plenty of time for another
attorney to step in and take over the case for
trial.
Accordingly and for the foregoing
reasons, the Union's motion to disqualify
(ECF No. 33) is denied without prejudice.
Olson's motion to strike or for leave to file a
sur-reply (ECF No. 52) is denied as moot.
The partial stay of discovery is vacated, and
the Clerk is directed to set this matter on the
calendar for a telephone conference to
address further scheduling.
______________________
William C. Griesbach, Chief
United States District Court
Judge
-5-
Kimberlin v. Walker (Md. App., 2016)
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
On August 30, 2013, Mr. Kimberlin filed

suit against a number of defendants, and by
the time of trial a year later, four remained:
Aaron Walker, William Hoge, Sr., Robert
Stacy McCain, and Ali Akbar (whom we refer
to collectively as the "Appellees"). In the
Complaint, Mr. Kimberlin alleged, in short,
that the Appellees had set out to ruin him by
attacking his reputation on internet blogs and
Twitter, and by embroiling him in litigation:
Header ends here.

UNREPORTED
CONSOLIDATED CASES
Meredith, Nazarian, Eyler, James R. (Retired,
Specially Assigned), JJ.
This matter arises out of a

multi-year campaign by [the
Appellees] to smear, destroy
and imprison [Mr. Kimberlin]
by knowingly, maliciously, and
intentionally filing numerous
frivolous,
defamatory,
and
malicious
court
filings
including civil suits, peace
orders, and criminal charges
and then
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-
portrayals were not "based on reality." In the

Complaint, Mr. Kimberlin purported to detail
litigation involving the parties, claiming that
Mr. Walker had assaulted him outside a
courtroom in 2012, that Mr. Walker had
wrongly accused him of raping his wife, and
that all Appellees had posted "hundreds of
false and defamatory blog posts and Twitter
tweets over the past year attacking [Mr.
Kimberlin] as a criminal rapist and pedophile
who commits domestic violence." The
Complaint also listed a number of blog posts
and tweets in which, he alleged, the Appellees
continued to spread these messages.
argument, which we discuss in detail below,

appears in a Maryland statute that prohibits a
convicted perjurer from testifying. Md. Code
(1974, 2013 Repl. Vol.), 9-104 of the Courts
& Judicial Proceedings Article ("CJP")). As a
result, the Appellees argued, Mr. Kimberlin
would be unable to establish falsity or
damages, both essential elements of the two
remaining claims. The court denied the
motion, finding the existence of a material
dispute of fact. The court declined, however,
to rule on the constitutionality of the statute.
A jury trial was to begin on August 11,
2014. The Friday before the Monday trial
date, however, Mr. Kimberlin filed a "motion
to find [CJP 9-104] unconstitutional." This
longstanding statutory provision prohibits
convicted perjurers from testifying, and Mr.
Kimberlin fit that descriptionby his own
(reluctant) admission. But the trial court
ultimately concluded that the language of the
statutewhich declares that "[a] person
convicted of perjury may not testify," CJP 9104, was not absolute, because it used the
word "may" rather than "shall," and that left
the trial court with discretion to permit it. The
court reiterated this ruling the following
morning, explaining that it was a "matter of
fundamental fairness" to prohibit Mr.
Kimberlin from testifying based on a fortyyear-old perjury conviction.
The Complaint listed counts for

malicious prosecution, conspiracy to abuse
process, defamation, false light invasion of
privacy, harassment, infliction of emotional
distress, and stalking, and Mr. Kimberlin
sought to recover compensatory and punitive
damages. After discovery was served, the
Appellees filed motions for summary
judgment on all counts of the Complaint
(which we will refer to collectively as the
"Summary Judgment Motions").
The court held a hearing on July 1, 2014.
The Appellees claimed in their motions that
Mr. Kimberlin had failed to produce in
discovery all the documents that he alleged
were defamatory. He responded that because
the Appellees had created the documents, he
was not obliged to produce them in discovery.
The court disagreed and ordered him to
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-
sought to elicit testimony that comments by

the Appellees caused harm to her, even
though she was not a party. His theory, as he
explained it, was that Daughter suffered
bullying that flowed somehow from the
Appellees' defamatory comments about him.
(Emphasis added.) The trial court then

analyzed in some detail the question of
whether pedophilia was a crime that could
give rise to an action for defamation per se.
The court stressed that Mr. Kimberlin had
devoted his case to establishing that the
Appellees called him a pedophile, but had not
proven that it was a crime or, more to the
point, that the allegations were false:
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.
The trial court ultimately granted the

Appellees' motion from the bench on August
12, 2014:
With respect to the count
alleging that the defendants
showed him in a bad light or
false light, that is really the
easier of the two and the Court
will grant judgment in favor of
the defendants with respect to
that count. There's not one
scintilla
(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.
Most of the pleadings in this case came to

this Court in Case No. 1445, September Term
2014. That appellate record contains the
Complaint (bearing circuit court civil case
number 380966, as do all the pleadings in all
three records) and four pleading volumes that
Now, the Court is not finding

that the statements were true.
We don't have to get there. It's
just that there was no
testimony that they were false.
Page 7
-3-
include the varied pre-trial pleadings and

certain
pleadings
and
administrative
documents relating to the trial. That record
does not include any final entry of judgment.
It appears that on August 27, 2014, Mr.
Kimberlin filed a "Motion for Issuance of
Judgment," in which he sought some final
order of disposition because, even though the
trial court directed a verdict in favor of the
Appellees from the bench on August 12, 2014,
nothing dispositive appeared in the case file
and the court did not direct entry of
judgment. But although Mr. Kimberlin had
sought a formal judgment by way of this
motion, he also filed a Notice of Appeal not
long after, on September 11, 2014, which in
turn initiated Case No. 1445 and caused the
circuit court to transmit the record as it
existed at that point.
third notice of appeal on April 29, 2015, in

which he noted an appeal from the April 9,
2015 final judgment order. That initiated a
third case in this Court, Case No. 365,
September Term 2015. All three notices of
appeal attack the same decisions, and we
address them next.
In the meantime, though, the parties

continued filing other pleadings in the circuit
court, and on October 31, 2014, the circuit
court granted the Motion for Issuance of
Judgment, and the court entered judgment on
November 5, 2014. Then, on November 17,
2014, Mr. Kimberlin filed a Motion for New
Trial in response to that entry of judgment.
He filed a second Notice of Appeal on
December 1, 2014 that purported to appeal
from the November 5, 2015 judgment. That
notice of appeal initiated a second appeal,
Case No. 2099, September Term 2014.
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
saved his case, but either way, the trial judge

correctly ruled that the case could not go to
the jury based on what Mr. Kimberlin had
presented.
A. The Trial Court Properly
Granted The Summary Judgment
Motions.
Mr. Kimberlin claims first that the trial
court should not have dismissed his claims
for abuse of process, conspiracy to abuse
process, and intentional infliction of
emotional distress. Mr. Kimberlin claims that
he dismissed the stalking and harassment
claims voluntarily, but the record of the ruling
isn't altogether clear; the trial judge first
started to name the counts with respect to
which he was granting the Summary
Judgment Motions, then stated simply that
"Counts 3 and 4 will remain." In either event,
the court did not dismiss these claimsit
granted the Summary Judgment Motions as
to the claims of abuse of process, conspiracy
to abuse process, and intentional infliction of
emotional distress, and we review the ruling
on that posture.
We also had stayed the first appeal

because of Mr. Kimberlin's filing of the
Motion for New Trial, and the case sat (quite
possibly because the trial judge who presided
over the trial had retired) with no ruling. The
court then addressed Mr. Kimberlin's Motion
for New Trial, and denied that motion on
April 9, 2015. The court also directed that
same day that judgment be entered in favor of
the Appellees.
Page 8
Then, apparently in an an overabundance of caution, Mr. Kimberlin filed a
-4-
We review the grant of a summary

judgment motion de novo. Am. Civil Liberties
Union Found. of Md. v. Leopold, 223 Md.
App. 97, 110 (2015). The trial court may not
resolve any disputed issues of fact at
summary judgment, see Md. Rule 2-501(a),
and so "the standard for appellate review of a
trial court's grant of a motion for summary
judgment is simply whether the trial court
was legally correct." Beatty v. Trailmaster
Prods., Inc., 330 Md. 726, 737 (1993). A party
opposing summary judgment may not defeat
the motion solely with allegations. Instead, "a
party opposing summary judgment must
identify disputed material facts with
particularity and offer evidence or testimony
demonstrating
numerous motions to have

Plaintiff found in contempt and
fined tens of thousands of
dollars, all of which were
rejected by Judge Potter. In the
Federal suit, Defendant Walker
sued
Plaintiff's
non-profit
employer and then attempted to
extort plaintiff by demanding
that the employer fire Plaintiff.
Both of these actions by
Defendant
Walker
were
intended to and were attempts
to deprive Plaintiff of property.
But other than his own summariesnot
by way of an affidavit, but in an opposition
styled as a legal pleadingMr. Kimberlin did
not file any evidence bearing on the
Appellees' motives or demonstrating his
injuries in response to the Summary
Judgment
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.
And he identified no discovery

that would have contradicted or
doubt any material fact that the
had raised with respect to each
In the absence of countervailing

evidence, the trial court properly granted the
Summary Judgment Motions. See Campbell
v. Lake Hallowell Homeowners Ass'n, 157
Md. App. 504, 530 (2004) (laying out the
elements of an abuse of process claim,
including "first, that the defendant willfully
used process after it has issued in a manner
not contemplated by law; second, that the
defendant acted to satisfy an ulterior motive;
and third, that damages resulted from the
defendants['] use of perverted process."
(internal citations and quotations omitted)).
Mr. Kimberlin introduced no pleadings from
cases he listed, nor any affidavit, answers to
interrogatories,
or
other
statements
purporting to explain what emotional distress
he suffered. And he never took the stand:
In the Prince William County

case, Defendant Walker filed
-5-
instead, Mr. Kimberlin sought, improperly, to

argue about the cases that he claimed the
Appellees had filed, and that formed the basis
of the abuse of process and conspiracy claims,
during opening arguments and in his
questioning of other witnesses. The same was
true with his intentional infliction of
emotional
distress
claim,
where
he
introduced no evidence of harm other than to
speak broadly about it to the court. See Exxon
Mobil Corp. v. Albright, 433 Md. 303, 350-51
(2013) (explaining that, in an intentional
infliction of emotion distress claim, "as long
as the emotional distress due to the tortious
conduct is manifested objectively, the
emotional distress is deemed genuine and
compensable even though the tortious
conduct did not cause bodily harm"
(emphasis added)). Given what it had (and
didn't have) before it at the time, the circuit
court correctly granted the Summary
Judgment
we know that he was not thwarted from doing

so by 9-104.
Mr. Kimberlin also contends that the
timing of the court's ruling, which was made
"literally minutes before testimony was to
begin," left him "wholly unprepared to take
the stand." But he never raised that complaint
at any stage of the circuit court proceedings,
nor did he imply to the trial court that he
suffered any prejudicehe did not ask for a
postponement (and we don't mean to suggest
that he should have been granted one if he
had), nor did he offer any practical reason
why he couldn't prepare his own testimony
for a trial when he had been seeking to assert
his right to testify all along.
Page 13
C. The Trial Court Exhibited No
"Prejudicial Conduct" In The Course Of
The Trial.
Page 12
Mr. Kimberlin complains third that the

trial judge "depriv[ed] him of the right to put
on evidence to prosecute his case." He claims
that the judge limited Daughter's testimony in
a way that prevented him from generating an
issue of fact as to whether he was a pedophile
and whether he suffered damage to his
reputation. He also claims the trial judge
should have permitted him to go further in
his examination of Mr. Walker, and that he
should have been allowed to introduce certain
emails sent to Mr. Walker and Mr. Hoge from
Mr. Kimberlin's wife.
Motions as to the abuse of process, conspiracy

to abuse process, and intentional infliction of
emotional distress claims.
B. The Trial
Regarding
CJP
Unreviewable.
Court's Ruling
9-104
Is
Mr. Kimberlin argues second that CJP

9-104 is unconstitutional. We decline to
address this argument because the trial court
never ruled that the statute is constitutional
in fact, the court decided that Mr. Kimberlin
could testify at trial, and thus never applied
the statute to bar his testimony in the first
place. This leaves us with no decision
unfavorable to Mr. Kimberlin to review. See
Suter v. Stuckey, 402 Md. 211, 232 (2007)
("Maryland common law is clear that, as a
general rule, the only persons who may
appeal a judgment are those aggrieved by that
judgment."). Why, after winning that motion,
he opted not to testify after all is unclear, but
Evidentiary decisions lie within the

discretion of the trial judge, Abrishamian v.
Washington Med. Group, P.C., 216 Md. App.
386, 409 (2014), and we will not disturb
those decisions here. As a general matter, the
court gave Mr. Kimberlin a great deal of
leeway throughout the trial to explore
different avenues. But the court expressed
concern about why Mr. Kimberlin found it
necessary to call Daughter, given her age and
the seriousness of the allegations involved.
-6-
Even then, the court curbed the questioning

only when Mr. Kimberlin sought to stray into
issues that were not proper for her, such as
damage to Mr. Kimberlin's reputation, of
which she had no direct knowledge, or the
truth (or falsity) of whether he was a
pedophile. So, for example, although Mr.
Kimberlin argued that Daughter was bullied
because of the Appellees' conduct, he never
connected her suffering to harm to him based
on the alleged actions of the Appellees. And
the trial judge correctly pointed out that Mr.
Kimberlin could not use Daughter's testimony
to disprove the truth of any allegation that he
was a pedophile: "No one is objecting to what
the jury
Orwick v. Moldawer, 150 Md.

App.
528,
531
(2003).
Consequently, we "may affirm
the grant of the motion for
judgment only if . . . we
conclude
that
there
was
insufficient evidence to create a
jury question." Wilbur v. Suter,
126 Md. App. 518, 528 (1999).
Spengler v. Sears, Roebuck & Co., 163 Md.
App. 220, 235 (2005) (internal citations
omitted).
Mr. Kimberlin raises several arguments
in this regard, but his problem on these
remaining claims is a pure failure of proof,
and specifically to prove that any of the
allegedly defamatory or false statements was
false. This failure dooms both his defamation
claim, see id. at 240 ("[I]f a plaintiff cannot
prove the falsity of a particular statement, the
statement will not support an action for
defamation."), and his claim for a false light
invasion of privacy. Piscatelli v. Smith, 424
Md. 294, 306 (2012).
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:
D. The Trial Court Properly

Granted The Appellees' Motion For
Judgment At The Close Of Mr.
Kimberlin's Case.
THE COURT: My question is

who testified in this case that
the statement was false?
Fourth, Mr. Kimberlin argues that the

trial judge erred in granting judgment to the
defendants after his case-in-chief.
MR.
KIMBERLIN:
testified?
In reviewing the grant of a

motion for judgment, we
"assume the truth of all credible
evidence on the issue, and all
fairly
deducible
inferences
therefrom, in the light most
favorable to the party against
whom the motion is made."
Who
THE COURT: Yes, what

evidence is there that the
statement was false? The
question does not suggest, the
Court's question does not
suggest that the statement was
true, no. But I'm just focusing
-7-
on . . . [t]he instructions that the

Court would have to give to the
jury that they must follow. And
these are just annotations, Offen
v. Brenner, [402 Md. 191
(2007)]. So what testimony was
there that the statements made
by these gentlemen were false?
finding whether it's false and

whether
it's
true.
THE COURT: But there has to
be some evidence. They just
can't pull things out of the air, a
jury. They can't just go back
there and decide what they want
to decide. I have to give them
instructions on the law.
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)).
THE COURT: I'm not asking

you to prove anything. I'm
asking you who in this
courtroom yesterday or today
said that those statements were
false.
MR. KIMBERLIN: Your Honor,
in
a
defamation
case
***
THE COURT: Who said it was

false?
MR. KIMBERLIN: Who said it
was
false?
THE COURT: Do you want to
read
this?
MR. KIMBERLIN: I know what
they
said.
THE COURT: I mean I didn't
make this up. This is Maryland
law.
We explained in Shapiro v. Massengill,

105 Md. App. 743 (1995), the difference
between defamation per se and defamation
per quod:
Page 16
Page 17
MR. KIMBERLIN: I think that

the jury has to make that
-8-
"In the case of words or conduct

actionable per se their injurious
character is a self-evident fact of
common knowledge of which
the court takes judicial notice
and need not be pleaded or
proved. In the case of words or
conduct actionable only per
quod, the injurious effect must
be established by allegations
and proof of special damage and
in such cases it is not only
necessary to plead and show
that the words or actions were
defamatory, but it must also
appear that such words or
conduct caused actual damage."
I. Whether [CJP 9-104], which

prohibits anyone convicted of
perjury from testifying in any
Maryland
court,
is
unconstitutional as a violation
of the First Amendment's
guarantee to meaningful access
to the courts, the Fifth
Amendment's
due
process
clause, and the Fourteenth
Amendment's Equal Protection,
under both the United States
and Maryland Constitutions,
and other articles of the United
States
and
Maryland
Constitutions.
II. Whether the circuit judge
erred in his ruling for a directed
verdict on the defamation and
false
light
counts.
Id. at 773 (quoting Metromedia, Inc. v.

Hillman, 285 Md. 161, 163-64 (1979)). This
distinction goes not to the truth or falsity of a
statementit goes to damages. That is, a
plaintiff is relieved of proving the injurious
character of a statement if it is deemed
defamation per se. But if the statements here
were deemed defamation per se (and again,
we aren't holding that they should or
shouldn't be), Mr. Kimberlin still has to prove
that they were false as wella statement that
is defamatory but true isn't actionable. And
although he keeps saying he has shown
falsity, he declined to take the stand to deny
the allegations. Whether or not his testimony
would have cured the problem, we agree with
the circuit court that he failed to satisfy the
burden of production he bore even to get to
the jury on these two claims.
III. Whether the circuit court

judge erred in not following the
law with regard to his ordering a
directed verdict, rather than
allowing the jury to issue a
verdict.
IV. Whether the trial judge
exhibited prejudicial conduct in
the case that deprived appellant
of
a
fair
trial.
V. Whether the circuit court
erred in denying pretrial
appellant's claims for abuse of
process,
conspiracy
and
intentional
infliction
of
emotional distress.
JUDGMENT OF THE CIRCUIT

COURT FOR MONTGOMERY COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
--------
-------Footnotes:
1. Mr. Kimberlin presents the following
issues on appeal:
-9-
Fleming v. Parnell (W.D. Wash., 2014)
DERRAL FLEMING, and MAG

ENTERPRISES, LLC, Plaintiffs,
v.
SCOTT PARNELL, and SAMSON
SPORTS, LLC, Defendants.
invalid; (3) the copyrights are actually owned

and authored by Fleming; (4) Defendants
breached fiduciary duties to Plaintiffs by
misappropriating
and/or
converting
partnership assets; and (5) the partnership
has dissolved and the Court should equitably
distribute the partnership assets, including
the disputed copyrights ("Pl. Fed. Claims").
Dkt. 1.
CASE NO. C13-5062 BHS

WESTERN DISTRICT OF
WASHINGTON AT TACOMA
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
Dated: April 17, 2014

Header ends here.
ORDER DENYING CROSS
MOTIONS FOR PARTIAL
SUMMARY JUDGMENT
This matter comes before the Court on
the parties' cross motions for partial
summary judgment (Dkts. 89, 94). The Court
has considered the pleadings filed in support
of and in opposition to the motions and the
remainder of the file and hereby denies the
motions for the reasons stated herein.
I. PROCEDURAL HISTORY
This case involves a dispute between
former business associates. Derral Fleming
("Fleming") is the owner of MAG Enterprises,
LLC ("MAG"), collectively referred to as
Plaintiffs. Plaintiffs sometimes do business
under the name "Northwest Access Products."
Dkt. 98 at 2; 109 at 7. Scott Parnell ("Parnell")
is the owner of Samson
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.
On November 1, 2012, before Plaintiffs

filed this federal court action, Defendants in
this case initiated an action in Clark County
Superior Court, seeking to bar Plaintiffs from
using disputed technical drawing or any
similar drawings. Samson Sports, LLC v.
MAG Enterprises, LLC, et al., 12-2-04160-5
(Clark County Sup. Ct. 2012); Dkt. 95-14 at 1;
A. Complaint and Counterclaims

On January 29, 2013, Plaintiffs filed a
civil complaint alleging that: (1) Defendants
do not own the copyrights asserted and
Plaintiffs did not infringe on any copyright
owned by Defendants; (2) the copyrights are
-1-
Dkt. 95-20. In the First Amended Complaint

in the state court action, Defendants made the
same claims as in Def. Fed. Claims 4-12. Dkt.
95-19. It is unclear which claims Plaintiffs
alleged in state court because no answer or
counterclaim to the First Amended Complaint
was provided by either party. See Dkt. 97-9
(includes only the first seven pages of the
original answer and counterclaims in the
state court action, which includes Pl. Fed.
Claim 4). On December 21, 2012, the state
court judge placed all the disputed drawings
into escrow. Dkt. 95-20. The case was stayed
with respect to the parties' substantive claims
and counterclaims, but the Superior Court of
Clark County apparently issued an order
retaining jurisdiction to resolve "certain nonsubstantive issues." Dkt. 97 at 2.
manufactures, and installs anchor holders

and handicap access modules. Dkt. 97-2 at 3.
In 2009, Fleming approached Parnell at a
boat show and proposed that the two
manufacture and sell ADA handicap access
ramps together. Dkt. 98 at 2; Dkt. 97-2 at 4-5;
Dkt. 90 at 2-3. Fleming proposed that he
would sell the ramps to his contacts for 49%
of the profits and Parnell would receive the
remaining 51%. Id. Parnell agreed, but the
agreement was never memorialized in
writing. Dkt. 98 at 2. Fleming agreed to
contribute to design and manufacturing
labor, while Parnell agreed to pay labor and
startup costs, which later included payments
to
engineer
Kevin
Frederickson
("Frederickson"). Dkt. 90 at 3; Dkt. 98 at 2.
Later in the relationship, MAG was
contracted to install many of the ramp
systems and was separately invoiced at $500
per installation. Dkt. 90 at 5; Dkt. 107 at 2-3.
B. Motions for Partial Summary

Judgment
On February 28, 2014, Plaintiffs filed
their Motion for Partial Summary Judgment,
arguing for the dismissal of all Defendants'
counterclaims. Dkt. 89. The same day,
Defendants filed their Motion for Partial
Summary Judgment, requesting that the
Court find in their favor on Def. Fed. Claims
1-4. Dkt. 94. Defendants assert that a finding
in their favor on Def. Fed. Claims 1-2
necessitates dismissal of Pl. Fed. Claims 1-3.
Id.
After developing a prototype, the parties

sought an engineer to create technical
drawings and construction details, ultimately
settling on Frederickson. Dkt. 90 at 3; Dkt.
106 at 1. There is no dispute that
Frederickson drew the technical drawings on
which this litigation is based. Dkt. 97-2 at 4.
Samson
later
applied
for
copyright
registrations for
Page 5
Page 4
these
drawings,
after
Frederickson
transferred them to Samson by written
instrument. Dkt. 84.
II. FACTUAL BACKGROUND

A. Undisputed Facts
By late 2010, Parnell began to suspect

overcharging
by
MAG
and
Fleming
complained that there had been no
distribution of profits to him, which caused
unrest in the relationship. Dkt. 107 at 3; Dkt.
90 at 6. In January 2012, Fleming told
Parnell that he "wanted out." Dkt. 90 at 6.
The parties went their separate ways but
disputed how to liquidate and divide assets
and
inventory,
whether
non-compete
The business dispute in this case relates

to the design, manufacture, and sale of
handicap access ramps compliant with the
Americans with Disabilities Act ("ADA").
Dkts. 89, 94. Headed by Parnell, Samson is a
metal fabrication business that principally
produces wakeboard towers. Dkt. 98 at 2.
Fleming's
company,
MAG,
designs,
-2-
provisions applied, and which parties would

continue using the drawings. Dkt. 90 at 6-7;
Dkt. 107 at 3-4. This dispute developed into
the state court litigation, and then into the
filing of this lawsuit. Id.
would decide how to incorporate these

changes. Dkt. 106 at 3-4. Defendants define
the "design group" as Kevin Frederickson,
Scott Parnell, Mike Wallway, and Derral
Fleming. Dkt. 105 at 13.
B. Disputed Facts
Another issue among the parties arises

out of the characterization of the business
relationship. Plaintiffs allege that the business
relationship was always a partnership, while
Defendants allege that Fleming was an
independent contractor at the beginning of
the relationship. Dkt. 90 at 3; Dkt. 107 at 2.
Parnell asserts that he told Fleming at an
initial meeting that he was not interested in a
partnership. Dkt. 107 at 2. However, while
litigating this issue in state court, Defendants
stipulated that the relationship was a
partnership. Dkt. 95-12 at 1-2. The stipulation
makes no reference to effective dates and
Defendants argue that the relationship was
not a partnership before the date of the
stipulation. Id.
At the center of this case, the parties

dispute: (1) who owned the copyrighted
drawings prior to the parties' state court
stipulation that their relationship was a
partnership, (2) who could use the
copyrighted drawings on behalf of the
partnership, (3) who authored the copyrights,
and (4) any partnership agreement that
governed the relationship. See Dkt. 89; Dkt.
94. In addition, there are several specific
factual disputes, as outlined herein.
Plaintiffs argue that the copyrighted
drawings were authored by the design group,
including Fleming; Defendants contend that
Frederickson alone authored the drawings.
Plaintiffs contend that, before meeting
Parnell, Fleming authored his own ramp
drawings, which were used to build a
prototype product and later relied on by
Frederickson. Dkt. 90 at 3-4. Plaintiffs further
allege that Frederickson was directed by
multiple people,
With regard to damages, Plaintiffs allege

that Defendants were not paying Fleming's
earned distribution and that requests to see
the business accounting were denied. Dkt. 90
at 6. Plaintiffs contend that Fleming received
an $8,000 check but there
Page 7
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.
including Fleming, to make changes to the

drawings throughout the drafting process.
Dkt. 90 at 3. Specifically, Plaintiffs state that
the "particular views" of the drawings were
directed by the "design group," and that
Fleming directed additions and modifications
of "elements of the drawing." Dkt. 90 at 3-4.
In
contrast,
Defendants
claim
that
Frederickson revised and updated the
drawings to increase functionality, meet
building code requirements, and minimize
the amount of aluminum. Dkt. 106 at 2.
Defendants state that the design group made
suggestions for changing the drawings, some
written but mostly verbal, and Frederickson
Plaintiffs seek summary judgment

declaring
that
Defendants
comingled
partnership property with their own. Dkt. 89
at 40. Samson maintains that, although
Samson funds and partnership funds were
placed in the same bank account, they were
separately identified in accounting records
through QuickBooks software. Dkt. 107 at 5.
-3-
Lastly, Defendants allege that Plaintiffs

began selling the ramp systems created with
Defendants without Defendants' knowledge
sometime in the spring of 2012. Dkt. 98 at 23. Plaintiffs agree that they covered up the
Samson name and logo on the drawings with
MAG's name and logo, but inexplicably argue
that they only used copies and never had
possession of the original drawings. Dkt. 97-1
at 2-3; Dkt. 90 at 9. Defendants also allege
that in January 2014 they were contacted by
the Portland Public School District to report a
broken ramp. Dkt. 98 at 3. Defendants state
that they inspected the ramp and determined
that it was a Samson design, but had not been
fabricated by Samson. Id. Defendants state
that approximately $270.00 in costs repairing
said ramp and a loss of goodwill resulted. Id.
Second, Defendants moved to strike

settlement communications mentioned in
Plaintiffs' motion, pursuant to "FRCP 408,"
which the Court construes as a clerical error
meant to reference ER 408. Dkt. 105 at 4
(citing Dkt. 89 at 9). Under ER 408, evidence
of settlement offers is inadmissible if offered
for the purpose of proving or disproving the
amount of a disputed claim or to impeach by
a prior inconsistent statement or a
contradiction. It is unclear for what purpose
Plaintiffs included settlement discussions
because their brief only mentions this
information in the context of factual
background. Dkt. 89 at 6. To the extent the
information was mentioned for an improper
purpose, the motion is granted.
A. Summary Judgment Standard
III. SUMMARY JUDGMENT

Summary judgment is proper only if the
pleadings, the discovery and disclosure
materials on file, and any affidavits show that
there is no genuine issue as to any material
fact and that the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P.
56(c).
The principal issue before the Court is

whether genuine issues of material fact exist
with regard to each of Defendants'
counterclaims. See supra p. 2, lines 10-22.
Page 8
Plaintiffs request judgment in their favor on
these counterclaims and request that they be
dismissed. Defendants request summary
judgment in their favor on Def. Fed. Claims 14.
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.
Two threshold matters warrant the

Court's attention before the merits of the
motions may be reached. First, Plaintiffs
object to Defendants' use of an expert report
on accounting and damages on the bases of
lack of personal knowledge, relevance, and
that it provides legal conclusions. Dkt. 109 at
3. Plaintiffs did not move to strike the
material, and even assuming they had, such a
motion should be denied at this stage of the
proceeding. The Court notes Plaintiffs'
objections and will accord that information
the appropriate weight.
-4-
Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630
(9th Cir. 1987).
attorney's fees are not available to

Defendants; (5) Defendants fail to show a
nexus between the alleged infringement and
the alleged damages; and (6) the copyright
registrations are unenforceable due to
Defendants' inequitable conduct. Dkt. 89 at
21 -40.
The determination of the existence of a

material fact is often a close question. The
Court must consider the substantive
evidentiary burden that the nonmoving party
must meet at triale.g., a preponderance of
the evidence in most civil cases. Anderson,
477 U.S. at 254; T.W. Elec. Serv., Inc., 809
F.2d at 630. The Court must resolve any
factual issues of controversy in favor of the
nonmoving party only when the facts
specifically attested by that party contradict
facts specifically attested by the moving party.
The nonmoving party may not merely state
that it will discredit the moving party's
evidence at trial, in the hopes that evidence
can be developed at trial to support the claim.
T.W. Elec. Serv., Inc., 809 F.2d at 630
(relying on Anderson, 477 U.S. at 255).
Conclusory,
Defendants argue that Plaintiffs have

infringed on their copyrights because: (1)
Fleming has admitted that he copied the
disputed drawings; (2) based on the
certificate of registration, Defendants owned
the copyrights; (3) the minor errors made in
Defendants' registration do not invalidate the
copyright under Ninth Circuit case law; (4)
the disputed drawings are copyrightable
subject matter; (5) Frederickson is the author
of the disputed drawings; (6) the partnership
owns the copyrights in the disputed drawings;
(7) even if the disputed drawings are
derivative of Plaintiffs' work, Plaintiffs do not
own the copyright in the material to which
Frederickson contributed; and (8) Plaintiffs
willfully infringed on the disputed copyrights.
Dkt. 94 at 11 -21.
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":
B. Defendants' Copyright Infringement

Claims
(1) to reproduce the copyrighted

work in copies or phonorecords;
(2) to prepare derivative works
based upon the copyrighted
work; (3) to distribute copies or
phonorecords
of
the
copyrighted work to the public
by sale or other transfer of
ownership, or by rental, lease,
or lending; (4) ... to perform the
copyrighted work publicly; (5)
... to display the copyrighted
work publicly; and (6) in the
case of sound recordings, to
perform the copyrighted work
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-
publicly by means of a digital

audio transmission.
Defendants contend that there are many

material issues of fact regarding ownership,
authorship, authority to file applications for
copyright registrations, actual damages, and
whether Defendants' use of the copyrighted
material was authorized. Id. The Court
agrees. Plaintiffs fail to show that these issues
may be resolved as a matter of law without
resolving the underlying factual disputes.
Therefore, with regard to Defendants'
copyright counterclaims (Def. Fed. Claims 1 2), both parties' partial summary judgment
motions are denied.
Pursuant to 17 U.S.C. 501, "the legal or

beneficial owner of an exclusive right under a
copyright is entitled ... to institute an action
for any infringement of that particular right
committed while he or she is the owner of it."
To prove copyright infringement claims,
Defendants must show: (1) ownership of a
valid copyright, and (2) that Plaintiffs copied
protected elements of Defendants' work. L.A.
Printex Industries, Inc. v. Aeropostale, Inc.,
676 F.3d 841, 846 (9th Cir. 2012).
C. Defendants' Lanham Act Claims
3. Analysis
1. Parties' Arguments
As an initial matter, the Court gives full

faith and credit to the parties' state court
stipulation entered on September 27, 2013,
pursuant to 28 U.S.C. 1738. Therefore, the
Court treats the business relationship in this
case as a partnership (the "Partnership"), at
least after the date on which the state court
entered the stipulation. Furthermore, the
parties agree that "Parnell/Samson" was the
managing partner of the Partnership. Dkt.
105 at 10; Dkt. 109 at 6.
Plaintiffs also assert that Defendants'

unfair competition and Lanham Act claims
are deficient because (1) Defendants'
Northwest Access Products website is literally
true; (2) Defendants have no evidence to
establish distinctiveness of the ramp design;
and (3) competitor depictions of identical
products are not false advertising. Dkt. 89 at
41-44.
Plaintiffs
also
contend
that
Defendants' tortuous interference claims
should be dismissed because a dissolved
partnership has no expectancy interest in new
post-dissolution business, and Defendants
produced no contract or other agreement
obligating MAG to conduct business with the
Partnership post dissolution. Dkt. 89 at 4445.
The parties seem to agree that the

copyrights were owned by the Partnership
after September 27, 2013. See Dkt. 94; Dkt.
109. However, the parties dispute who owned
the copyrights before that date, and who was
empowered to use the copyrights on behalf of
Page 13
Page 12
Defendants allege that Plaintiffs passed

off Samson/Partnership ramps, drawings,
and engineering as its own. Dkt. 94 at 23-26.
Based on those allegations, Defendants argue
that
Plaintiffs
committed
trademark
infringement by "reverse passing off,"
meaning misrepresenting another's goods or
services as their own. In addition, Defendants
submit that their false advertising claim has
also been proven as a matter of law because:
(1) Plaintiffs admit to posting photographs of
the Partnership. Id. Fleming does not dispute

copying the drawings, but asserts that his use
was authorized because he only used the
unprotectable data contained in the drawings,
not the drawings themselves. Dkt. 109 at 14.
Parnell claims that he was empowered to use
the drawings as the non-dissociated partner,
who was assigned the drawings by
Frederickson. Dkt. 105 at 35.
-6-
Defendants' manufactured ramp modules on

its website; (2) more than two dozen of such
photographs misrepresented Plaintiffs as
more experienced and sophisticated than in
reality, and such misrepresentation was likely
to deceive; (3) these photographs were
advertisements in interstate commerce
because they were posted on the Internet; and
(4) the Partnership was injured as a result of
sales diversion and "a lessening of goodwill
associated with its products." Dkt. 94 at 2526.
product or the product of

another;
(2)
those
advertisements
actually deceived or have the
tendency
to
deceive
a
substantial segment of their
audience;
(3) the deception is material, in
that it is likely to influence the
purchasing
decision;
(4) defendant caused its falsely
advertised goods to enter
interstate
commerce;
and
(5) plaintiff has been or is likely
to be injured as the result of the
foregoing either by direct
diversion of sales from itself to
defendant, or by lessening of the
good will which its products
enjoy with the buying public.
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.
Cook, Perkiss & Liehe v. N. Cal. Collection

Srv., Inc., 911 F.2d 242, 244 (9th Cir. 1990)
(quoting Skil Corp. v. Rockwell Int'l Corp.,
375 F.Supp. 777, 783 (N.D. Ill. 1974)).
Reverse passing off claims require proof

of: (1) the origination of the goods or services
in question with the Defendants; (2)
Plaintiffs' false designation of the origin of
those goods or services; (3) the likelihood of
consumer confusion caused by the Plaintiffs'
false designation of origin; and (4) harm to
the Defendants caused by the
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).
Similarly, the same issues of ownership

arise under Defendants' false advertising
claim. The falsity of any advertisement
depends on who owned or had rights to the
Under 15 U.S.C. 1125(a)(1)(B), a party

alleging false advertising must prove the
following elements:
Page 15
(1) in its ... advertisements,

defendant
made
false
statements of fact about its
drawings, ramps, and related information.

Furthermore, there has been no evidence
-7-
presented on whether a substantial segment

of customers may have been deceived. Both
parties' partial summary judgment motions
on Defendants' Lanham Act claims (Def. Fed.
Claim 3) are denied.
state court action and predominate the issues

in this case. Moreover, it appears that
resolution of the federal claims would
expedite and economize this dispute.
Therefore, the parties shall meet and confer
on this proposal, and then submit a joint brief
including both parties' positions, to be filed
no later than April 25, 2014.
D. Defendants' State Law Claims

In addition to its copyright and Lanham
Act claims, Defendants alleged ten other
claims arising out of state law (Def. Fed.
Claims 4-13), nine of which were pled in state
court (Def. Fed. Claims 4-12).
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).
Each of the state law claims is dependent

on the factual resolution of the federal claims,
and present many of the same issues of fact as
previously outlined. Therefore, summary
judgment on these claims is premature, and
the Court denies Plaintiffs' motion with
regard
to
Defendants'
state
law
counterclaims.
2. Plaintiffs' Motion for Partial Summary

Judgment (Dkt. 89) is DENIED as
premature with regard to Defendants' state
law counterclaims (Def. Fed. Claims 5-13).
In addition, although neither party has

addressed the issue of bifurcation, the Court
may raise the issue sua sponte. In Re Paoli
R.R. Yard PCB Litig., 113 F.3d 444, 452 n.5
(3d Cir. 1997). Fed. R. Civ. P. 42(b) authorizes
this Court to order a separate trial of any
claim "[f]or convenience, to avoid prejudice,
or to expedite and economize." Fed. R. Civ. P.
42(b). It is within a court's discretion whether
to order separate trials for separate issues in
the same case. Marks Food Corp. v. Barbara
Ann Baking Co., 274 F.2d 934, 936 (9th Cir.
1959). "Bifurcation is particularly appropriate
when resolution of a single claim or issue
could be dispositive of the entire case."
Drennan v. Maryland Casualty Co., 366 F.
Supp. 2d 1002, 1007 (D. Nev. 2005) (citing
O'Malley v. U.S. Fidelity & Guaranty Co., 776
F.2d 494, 501 (5th Cir. 1985)).
3. All of Plaintiffs' claims are not

addressed by this order, and these claims may
proceed. Given denial of both motions, all of
Defendants' counterclaims may also proceed.
4. Defendants' Motion to Strike (Dkt.
105) is GRANTED in part and DENIED
in part as follows: To the extent that
Plaintiffs offered settlement discussions for
an improper purpose the motion is
GRANTED, and for other purposes it is
DENIED.
Page 17
5. The parties shall meet and confer and
then submit a joint brief including both
parties' positions, to be filed no later than
Apri 25, 2014.
Page 16
__________
BENJAMIN
H.
United States District Judge
In this case, the Court is inclined to

exercise its discretion and bifurcate the state
law claims and the federal law claims. The
state law claims are duplicative of the stayed
SETTLE
-8-

MILWAUKEE DIVISION
Plaintiff,
v.
Defendants.
ORDER
Upon consideration of the Plaintiffs Motion to Disqualify Defendants Attorney, Aaron
Justin Walker, for Alleged Violations of the DC Bar Association Rules of Professional 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) (the Motion to Disqualify Defense Counsel), the Joint Opposition
to the Plaintiffs Motion to Disqualify Counsel (Docket #18) and Motion to Strike the Same
filed by Defendants Johnson and Palmer, and any other document filed in opposition or support
thereto,
IT IS HERBY ORDERED that the Plaintiffs Motion to Disqualify Defense Counsel is
denied.
IT IS FURTHER ORDERED that the Plaintiffs Motion to Disqualify Defense Counsel
is hereby stricken.
IT IS FURTHER ORDERED that the clerk of the court shall remove Motion to
Disqualify Defense Counsel (Docket #18) from the electronic case file and return the original
paper copy to the Plaintiff.
Dated at Milwaukee, Wisconsin, this
day of
, 2016
BY THE COURT
NANCY JOSEPH
United States Magistrate Judge
2

ECF 19 Redacted

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

ECF 19 Redacted

Transféré par

Droits d'auteur :

Formats disponibles

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

On March 7, 2016, the Plaintiff filed a Motion to Disqualify Defendants [sic]

Case 2:15-cv-01516-NJ Filed 03/08/16 Page 1 of 22 Document 19

All three of these

The Rule Against an Attorney Being Involved in a Case Where He is Likely to be a

undersigned from serving as counsel. It reads as follows:

A lawyer shall not act as advocate at a trial in which the

The testimony relates to an uncontested issue;

The testimony relates to the nature and value of

Disqualification of the lawyer

This language is virtually identical to the language found in WIS. CODE

Olson concerned a suit surrounding a collective bargaining

Second, the Plaintiff cannot show that counsel is likely to be a validly-called

witness. At best, the Plaintiff speculates that

So, outside of privileged

Finally, even if counsel was likely to be a necessary witness, disqualification of

on the usefulness of counsel as follows:

A second reason why the Plaintiff claims disqualification is justified is because

As an initial matter, it is permissible to refer to Mr. Kimberlin as a convicted

While it is true that the statutes under which Mr.

Kimberlin v. White, 798 F. Supp. 472, 474 (W.D. Tenn. 1992)

writing the following heading VIOLATIONS OF THE ABA MODEL CODE OF

As stated in the Preliminary Statement to the ABA Model Code of Professional

A Tweet is a short message, delivered via Twitter, to the world at large.

On page 25 of Exhibit 4, the Plaintiff accurately quotes undersigned counsel as

accusing the Plaintiff of racistly insulting the undersigned counsels wife.

background, undersigned counsel is in an interracial marriage, celebrating more than a decade of

(Curse words censored).

Asian American women endure being constantly and falsely

On page 12 of Exhibit 4, the Plaintiff accurately quotes the undersigned counsel

Finally, the most ridiculous example of supposedly defamatory comments by the

counsel are those which contain jokes to the effect

Parkinsons Decade. If there is any doubt that this

The Plaintiffs claim that undersigned

counsel defamed the Plaintiff by suggesting he was

fat was obviously made in bad faith.

The DeWalt case is primarily about challenging his parole revocation.

See Defendant Walkers Motion to Strike Plaintiffs Oppositions, Notification and

With most ordinary people, it is reasonable to assume that if they make an

The Declaration of Aaron Walker contradicts Mr. Kimberlins declaration in

Accordingly, the Plaintiffs motion to

A copy of this order is attached as Exhibit H.

Tuesday, March 8, 2016

CIVIL L. R. 7(A)(2) CERTIFICATION

Case 2:15-cv-01516-NJ Filed 03/08/16 Page 1 of 49 Document 19-1

SEPTEMBER TERM 2014/2015

Appeal from the Circuit Court of Montgomery County

BRIEF OF APPELLANT BRETT KIMBERLIN

QUESTIONS PRESENTED FOR REVIEW

COURTS ARTICLE 9-104 IS UNCONSTITUTIONAL

Case 2:15-cv-01516-NJ Filed 03/08/16 Page 3 of 49 Document 19-1

Batson v. Shiflett, 325 Md. 684 (1992)

Bochan v. La Fontaine, 68 F. Supp. 2d 692 (D. ED Va. 1999)

Brown v. Farkas, 511 NE 2d 1143 (Ill. 1986)

Bouie v. Rugged Wearhouse, Inc., 2007 WL 430752 (D. Md. 2007)

Dorszynski v. United States, 418 U.S. 424 (1974)

Faretta v. California, 422 U.S. 806 (1975)

Farnum v. Colbert, 293 A2d 279 (DC 1972)

Geschwendt v. Yoe, 174 Md. 374,381, 198 A. 720651 (1938)

Hanrahan v. Baltimore, 114 Md. 517,535 (1911)

Haskins v. Bayliss, 440 F.Supp.2d 455,461 (D. Md. 2006)

Hearst Corp. v. Hughes, 297 Md. 112, 125, (1983)

Jordan v. State, 591 A.2d 875 (Md. 1991)