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MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

Brett Kimberlin,
Plaintiff
v.

Case No. 403868V

National Bloggers Club, et al.,


Defendants

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT


WALKERS MOTION TO DISMISS THE COMPLAINT AND INVOKING
MARYLANDS ANTI-SLAPP STATUTE

TABLE OF CONTENTS

Table of Authorities

Introduction and Summary of Argument

Procedural History

I.

Every Cause of Action is Barred by Res Judicata

II.

The Plaintiff is Collaterally Estopped from Claiming that Mr. Walker Battered Him, or
Intentionally Inflicted Emotional Distress Upon Him; and the Plaintiff is Estopped From
Denying that the Plaintiff Tried to Frame Mr. Walker for that Non-Assault, that He Cost
Mr. Walker his Job, and that the Plaintiff is a Pedophile
9

III.

The Plaintiff Fails to Properly Plead False Light

12

A.

The Plaintiff is Defamation-Proof and Therefore No Cause of Action Can Lie For
False Light Invasion of Privacy
13

B.

The Plaintiff Fails to Plead False Light with Sufficient Specificity

19

1.

The Plaintiff Fails to Properly Plead False Light in Relation to SWATting


22

2.

The Plaintiff Fails to Properly Plead False Light in Relation to the Loss of
Mr. Walkers Job
23

3.

The Plaintiff Fails to Properly Plead False Light in Relation to the Alleged
Battery
25

IV.

The Plaintiff Fails to Properly Plead Publicity of Private Facts, by Failing to Allege that
the Defendants Publicized Anything that was Private or a Fact
26

V.

The Plaintiff Fails to Properly Plead Invasion of Privacy by Intrusion into Seclusion, by
Failing to Allege Unlawful Intrusion, or that It Involved Private Matters
28

VI.

The Plaintiff Fails to Properly Plead Appropriation of His Name Or Likeness, Because
He Fails to Allege the Defendants Have Taken Advantage of His Good Name, Fails to
Allege His Name Has Commercial Value, Fails to Allege Any Harm Proximately Caused
by Such Appropriation and Only Alleges Incidental Use of His Name or Likeness
30

VII.

The Plaintiff Doesnt Properly Allege Any Actual Interference with an Existing Contract,
or His Business Relationships
31

ii

VIII.

The Plaintiffs Claim for Battery is Barred by Collateral Estoppel and the Statute of
Limitations
34

IX.

The Plaintiff Doesnt Properly State a Claim for Intentional Infliction of Emotional
Distress Because He Failed to Allege Outrageous Conduct or a Physical Manifestation of
Distress
36

X.

Plaintiffs Claim for Civil Conspiracy Must Fail Because It is not an Independent Tort
and He Has Not Pled Any of the Elements of Conspiracy
38

XI.

All Claims Should Be Dismissed Because the Plaintiff Serially Fails to Properly Allege
He was Damaged
39

XII.

Dismissal Should Be Granted Quickly Pursuant to Marylands Anti-SLAPP Law

Conclusion

39
42

iii

TABLE OF AUTHORITIES

CASES
Airframe Sys. Inc. v. Raytheon Co., 601 F.3d 9 (1st Cir. 2010)

Alleco Inc. v. Harry & Jeanette Weinberg Foundation, Inc., 340 Md. 176 (1994)

38

Allen v. Bethlehem Steel Corp., 76 Md. App. 642 (1988)

21

Ananiev v. Freitas, 2014 WL 1400857 (D.D.C. Apr. 11, 2014)

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

Bagwell v. Peninsula Regional Medical Center, 106 Md. App. 470 (1994)

12, 21, 32

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

36

Baron Financial Corp. v. Natanzon, 471 F.Supp.2d 535 (D. Md. 2006)

32

Beaumont v. Brown, 65 Mich. App. 455, 237 NW 2d 501 (1975)

29

Brandenburg v. Ohio, 395 U.S. 444 (1969)

37

Brown v. Ferguson Enters., Inc., No. 12-CV-1817 (D. Md. Dec. 11, 2012)

20

Busse v. Steele, 2010 WL 3894558 (M.D. Fla. Aug. 18, 2010)


Cardillo v. Doubleday & Co., Inc., 518 F. 2d 638 (2nd Cir. 1975)

8
14, 19

Carr v. Watkins, 227 Md. 578 (1962)

38

Coby v. Mobley, 1994 U.S. Dist. LEXIS 5125 (D. Md. 1994)

34

Cochran v. Griffith Energy, 426 Md. 134, 43 A. 3d 999 (2012)

Cosby v. Dept of Human Res., 425 Md. 629, 42 A.3d 596 (Md. 2012)

Covington v. The Houston Post, 743 S.W.2d 345 (Tex.Ct.App.1987)

21

Crowley v. Fox Broadcasting Co., 851 F. Supp. 700 (D. Md. 1994)

12

Davidson-Nadwodny v. Wal-Mart Assoc., Inc. 2008 WL 2415035 (D. Md. 2008)

20

iv

Discon Inc. v. Nynex Corp., 86 F. Supp. 2d 154 (W.D.N.Y. 2000)

Dixon v. State, 133 Md. App. 325, 755 A.2d 560 (2000)

35

Doe v. U.S., 83 F. Supp. 2d 833 (S.D. Tex. 2000)

27

Eastwood v. Cascade Broadcasting Co., 106 Wash.2d 466, 722 P.2d 1295 (1986)

21

Exxon Mobil Corp. v. Albright, 433 Md. 303, 71 A.3d 30 (2013)

36

Fellows v. National Enquirer, Inc., 42 Cal.3d 234, 228 Cal.Rptr. 215, 721 P.2d 97 (1986)

21

Florida Star v. BJF, 491 U.S. 524 (1989)

28

Fowler v. Printers II, Inc., 89 Md. App. 448 (1991)

32

Gainsburg v. Steben & Co., 838 F.Supp.2d 339 (D. Md. 2011)

20

Gambocz v. Yelencsics, 468 F.2d 837 (3rd Cir. 1972)

Gannett Co., Inc. v. Anderson, 947 So.2d 1 (Fla. App., 2006)

21

Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir.1983)

21

General Motors Corp. v. Piskor, 27 Md.App. 95, 340 A.2d 767 (1975)

13

Goel v. Heller, 667 F.Supp. 144 (D.N.J., 1987)

Harnish v. HeraldMail Co., 264 Md. 326, 286 A.2d 146 (1972)

12

Harris v. Jones, 281 Md. 560 (1977)

37

Hollander v. Lubow, 277 Md. 47, 351 A. 2d 421 (1976)


Holt v. Camus, 128 F.Supp.2d 819 (D. Md., 2000)

26-28
20

In re Teletronics, 762 F. 2d 185 (2nd Cir. 1984)

Jackson v. Longscope, 394 Mass. 577 (1985)

15

Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. Sup. Ct. 1994)

14

Kimberlin v. Dewalt, 12 F. Supp. 2d 487 (D. Md. 1998)


Kimberlin v. DOJ, 788 F. 2d 434 (7th Cir. 1986)

2, 14, 16
14

Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059 (2013)

passim

Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013)

passim

Kimberlin v. Walker (I), No. 0601SP005392012 (Md. Mont. Co. Dist. Ct. 2012)

5, 11

Kimberlin v. Walker (I), No. 8444D (Md. Mont. Co. Cir. Ct. 2012)

Kimberlin v. Walker (II), No. 0601SP019792012 (Md. Mont. Co. Dist. Ct. 2012)

Kimberlin v. Walker (II), No. 8526D (Md. Mont. Co. Cir. Ct. 2012)

Kimberlin v. White, 7 F. 3d 527 (6th Cir. 1993)

1, 14, 33

Lamb v. State, 93 Md. App. 422 (1991)

35

Lawrence v. A.S. Abell Co., 299 Md. 697, 475 A.2d 448 (1982)

30-31

Madison v. Harford Cnty, No. MJG-12-CV-1120 (D. Md. Aug. 2, 2013)

34

Magenis v. Fisher Broadcasting, Inc., 103 Or.App. 555, 798 P.2d 1106 (1990)

21

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

24

McLaughlin v. Bradlee, 599 F.Supp. 839 (D.D.C. 1984)

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

21

Ollman v. Evans, 750 F. 2d 970 (D.C. Cir. 1984)

22

Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 502 A. 2d 1101 (1986)

27

Perry Ed. Assn. v. Perry Local Educators Assn., 460 U.S. 37 (1983) Error: Reference source not
found
Phillips v. Wash. Magazine, Inc., 58 Md.App. 30, 472 A.2d 98 (1984)

12

Pierson v. News Group Publications, Inc., 549 F. Supp. 635 (S.D. GA 1982)

29

Piscatelli v. Van Smith, 424 Md. 294, 35 A.3d 1140 (2012)


Ray v. Time, Inc., 452 F. Supp. 618 (W.D. Tenn.1976)
RRC v. BAA, 413 Md. 638, 994 A. 2d 430 (2010)

vi

12, 19, 21
15
2, 39

Schnabel v. Abramson, 232 F. 3d 83 (2nd Cir. 2000)

24

Smith v. Esquire, Inc., 494 F. Supp. 967 (D. Md. 1980)

21

Snyder v. State, 210 Md. App. 370 (2013)

35

Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A.2d 628 (2005)

32

Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108, 969 A.2d 1145 (N.J. Super., 2009)

21

Swate v. Schiffers, 975 SW 2d 70 (Tex. App., 4th Dist. 1998)

15

Telnikoff v. Matusevitch, 347 Md. 561, 702 A. 2d 230, 246 (1997)

10

Trundle v. Homeside Lending, Inc., 162 F.Supp.2d 396 (D. Md., 2001)

29

Uranga v. Federated Publications, Inc., 138 Idaho 550, 67 P. 3d 29 (2003)

27

U.S. v. Alvarez, 132 S. Ct. 2537 (2012)

18-19

U.S. v. Kimberlin, 805 F. 2d 210 (7th Cir. 1986)

1, 14

Uhl v. Columbia Broadcasting Systems, 476 F.Supp. 1134 (W.D.Pa.1979)

21

Wilson v. Sysco Food Services of Dallas, Inc., 940 F. Supp. 1003 (N.D. Tex. 1996)

29

STATUTES
MD. CODE CRIM. LAW 3-201

11, 35

MD CODE CTS. & JUD. PROC. 5-105

34

MD CODE Cts. & Jud. Proc. 5-807

20, 40-41

ARTICLES AND BOOKS


A.O. Scott, Cody Shearer: If He Didnt Exist, the Vast Right Wing Conspiracy Would Have
Invented Him, SLATE, May 22, 1999 (available at http://www.slate.com/articles/
news_and_politics/assessment/1999/05/cody_shearer .html), visited on December 7, 2013
16
David Weigel, The Weirdest Story About a Conservative Obsession, a Convicted Bomber, and
Taylor Swift You Have Ever Read, THE DAILY BEAST, August 30, 2014 (available at http://www.
vii

thedailybeast.com/articles/2014/08/30/the-weirdest-story-about-a-conservative-obsession-aconvicted-bomber-and-taylor-swift-you-have-ever-read.html), visited on April 26, 2015

40

Joseph Brean, Exceedingly political libel case pits free speech advocate Ezra Levant against
master of lawfare, NATIONAL POST, October 14, 2013 (available at http://news.nationalpost
.com/news/canada/exceedingly-political-libel-case-pits-free-speech-advocate-ezra-levantagainst-master-of-lawfare), visited April 26, 2015
43
Mark Singer, CITIZEN K: THE DEEPLY WEIRD AMERICAN JOURNEY OF BRETT KIMBERLIN (1996)
16
Patrick Frey, Brett Kimberlin Threatens to Sue Me; UPDATED with Second E-Mail from
Kimberlin, PATTERICOS PONTIFICATIONS, October 10, 2010 (available at http://patterico.com/
2010/10/11/brett-kimberlin-threatens-to-sue-me/), visited on April 26, 2015
40
R. Joseph Gelarden, Kimberlin Case a Maze of Murder, Deceit, INDIANAPOLIS STAR, October 18,
1981 (available at http://archive.indystar.com/assets/pdf/BG164276919.PDF), visited on
December 7, 2013
16
RetroIndy: The Speedway Bombings, Part I: For a Week in 1978, the Town of Speedway was
Terrorized by a Serial Bomber, INDIANAPOLIS STAR, (available at http://www.indystar.com/
article/99999999/ NEWS06/100919012/), visited on December 7, 2013
16
RetroIndy: The Speedway Bombings, Part II: Building the Case Against Brett Kimberlin
INDIANAPOLIS STAR, (available at http://www.indystar.com/article/99999999/NEWS06/
100919013), visited on December 7, 2013
16

viii

INTRODUCTION AND SUMMARY OF ARGUMENT


The Defendants include several victims of a crime called SWATting.

The term is

relatively new, and its definition can be debated, but in the case of the Defendants Walker, 1 Frey
and Erickson, this is what happened (upon information and belief). Someone called the police
on different dates, impersonating one of the defendants, usually using a hacker technique to
trick emergency services into believing he was calling from that defendants phone number. In
each case, the impersonator falsely confessed to murdering the victims wife. In other words,
someone called the police and said something to the effect of Im Aaron Walker, and I just shot
my wife. This was done to invoke a severe police reaction, potentially including a SWAT team,
which is why it is called SWATting and why it is spelled this way. Obviously, this trick is
very dangerous.
These people are victims of a crime, and each has reason to suspect that the Plaintiff was
involved. Upon information and belief, Frey, Walker, Erickson, and a fourth person, Mike Stack
(who is not part of this suit), all publicly criticized the Plaintiff, a convicted drug kingpin 2 and
terrorist known as The Speedway Bomber. 3 They were all SWATted. In Mr. Walkers case, he
had won a legal victory against the Plaintiff on the same day he was SWATted. Further, upon
information and belief, a person using an IP address associated with the Plaintiffs self-described
friend William Schmalfeldt threatened to SWAT Defendant William Hoge III, another critic of
the Plaintiff, and another person seen arguing with Mr. Schmalfeldt on the internet was SWATted
on the very evening of that argument. Additionally, the Plaintiffs self-identified associate Neal

Mr. Walker refers to himself in the third person for stylistic purposes and to de-personalize this
case.
2
U.S. v. Kimberlin, 805 F. 2d 210, 225-238 (7th Cir. 1986).
3
Kimberlin v. White, 7 F. 3d 527, 528 (6th Cir. 1993).
1

Rauhauser has been accused in another suit of making a veiled threat of SWATting. 4 In other
words, the Plaintiff is suing victims of a crimeeach of whom has good reason to suspect the
Plaintiff was involvedfor pointing out facts such as those laid out in the last two paragraphs.
None of the Defendants have accused the Plaintiff of SWATting them, but it is reasonable to
believe the Plaintiff is responsible (with co-conspirators).

Open investigations might still

produce an arrest warrant for the Plaintiff.


This lawsuit is the latest strike in the Plaintiffs multi-year campaign to silence his critics.
The Plaintiffs goal is to punish those who have spoken out against him, those who have spoken
to law enforcement seeking to bring him to justice, and attorneys whose only crime was the
peaceful representation of his enemies. For instance, the root of his ire toward Mr. Walker is
that he dared to give pro bono legal help to one of the targets of the Plaintiffs abusive litigation
and Mr. Walkers refusal to be bullied. The root of his anger toward Defendant Dan Backer is he
dared to give Mr. Walker pro bono legal help. Presumably, next the Plaintiff will be angry at the
lawyers who represent the Defendants in this case. Thus, this lawsuit represents an attempt by
this Plaintiff to punish protected speech, to punish those who would speak to law enforcement
about him, and to punish lawyers for representing his enemies.
Unfortunately, as is the case in a motion to dismiss, this Court is required to treat all wellpleaded allegations in the Complaint (Compl.) by this convicted perjurer5 as true. Still, [t]he
well-pleaded facts setting forth the cause of action must be pleaded with sufficient specificity;
bald assertions and conclusory statements by the pleader will not suffice. RRC v. BAA, 413 Md.
638, 994 A. 2d 430, 434 (2010). As this Court will see, many of the allegations are only
supported by such threadbare recitals, and others are not even supported by that much.
See Amend. Compl., ECF No. 5 at 87 in McGibney, et al., v. Retzlaff, et al., No. 14-CV-01059
(2014).
5
Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 490 n. 6 (D. Md 1998).
4

Indeed, in Ashcroft v. Iqbal, the Supreme Court wrote that [w]e begin our analysis by
identifying the allegations in the complaint that are not entitled to the assumption of truth. 556
U.S. 662, 681 (2009). It might be useful for this Court to do the same, actually taking a copy of
the Complaint, crossing out in red every allegation that is not entitled to a presumption of truth
(and any irrelevant and fantastical allegations) 6 and then seeing if there is anything left in the
white spaces that would support any claim for relief.
Within those white spaces, the Plaintiff has failed to allege a single cause of action
against Mr. Walker or any other Defendant for nine major reasons. First, the Plaintiff fails to
properly plead false light, by 1) failing to plead any false statement with sufficient specificity, 2)
pleading instances of false light that fall outside the statute of limitations, 3) failing to plead
malice, 4) failing to plead causation of damages, and because 5) his reputation is already so poor,
it is incapable of being further harmed. Second, the Plaintiff has failed to plead invasion of
privacy by giving publicity to private facts because he has not pled that they are private or facts.
Third, the Plaintiff has failed to plead intrusion into seclusion by failing to allege an improper
intrusion into a private sphere. Fourth, the Plaintiff has failed to plead appropriation of likeness
because he doesnt understand the nature of the tort, claiming absurdly that people he previously
claimed had sought to destroy his already demolished reputation then sought to profit from his
good name. Fifth, the Plaintiff has failed to plead either tortious interference with an existing
contract or with business relations by failing to properly allege interference or that it was
tortious. Sixth, the Plaintiffs claim that Mr. Walker battered him is barred by collateral estoppel,
E.g. Compl. 24-27, spinning an implausible and irrelevant tale where non-party HB Gary
allegedly teamed up with non-parties the NSA and the U.S. Chamber of Commerce to destroy
the Plaintiff. The implausibility of the tale speaks for itself. The irrelevance of it is
demonstrated in Compl. 28, where the Plaintiff merely alleges that the instant case involves a
parallel campaign without alleging that any Defendant had anything to do with that alleged
conspiracy.
6

twice, and also by the statute of limitations on the face of the Complaint. Seventh, the Plaintiff is
also collaterally estopped from pleading intentional infliction of emotional distress, and in any
case has failed to plead outrageous conduct or a physical manifestation of distress, or that such
distress was caused by any tortious conduct by the Defendants. Eighth, Conspiracy is not a
separate tort, and the Plaintiff has pled none of the elements of it.

Finally, and most

fundamentally, consistent with the Plaintiffs tendency to abuse the legal system, the entirety of
this suit is barred by the principles of res judicata, and most of it is also barred by collateral
estoppel: he has already had his day in court, and he lost but continues to pursue this case in bad
faith.
In short, the Plaintiff is barred from filing this suit and, in any event, has failed to state a
claim for which relief can be granted for any of his claims. Under Marylands Anti-SLAPP
statute, dismissal should be granted at the earliest opportunity. In the name of judicial economy,
this dismissal should be granted to all Defendants for all claims with prejudice and, upon further
motions, with sanctions including a declaration that the Plaintiff is a vexatious litigant.
PROCEDURAL HISTORY
There is a complicated history in this case prior to its arrival before this Court and it is
worth taking a moment to review it. This case represents the second action filed by the Plaintiff
making the majority of these claims. On October 15, 2013, the same Plaintiff sued Mr. Walker
and around two dozen other defendants, including most of the Defendants in this case, 7 in federal
court.

In it, the Plaintiff alleged violation of the Racketeering Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. 1961 et seq, 42 U.S.C. 1983, 42 U.S.C. 1985, as well
The only difference between the list of Defendants is that the Plaintiff is now clearly suing the
anonymous blogger known as Ace of Spades when previously he only sued the blog, and he is
suing Ginny Nagy in the stead of Defendant Mandy Nagy, because the case has gone on so long
that Mandy Nagy had a stroke while waiting for a favorable outcome.
7

as state-law claims of defamation, false light invasion of privacy, tortious interference with an
existing contract, tortious interference with business relationships, battery, and intentional
infliction of emotional distress. That case was initially captioned Kimberlin v. National Bloggers
Club, et al. (I), No. GJH-13-3059 (2013) (hereinafter Kimberlin v. NBC (I), the instant case
being Kimberlin v. NBC, et al. (II)). On March 17, 2015, that case was dismissed in nearly every
part. Memorandum Opinion, Kimberlin v. NBC, et al. (I) (ECF No. 263). The RICO claims and
the 1985 claims were dismissed for failure to state a claim. The 1983 claim, advanced solely
against Mr. Frey, was allowed to proceed to discovery (which is where the case is at present).
Finally, the court declined to exercise supplemental jurisdiction under 28 U.S.C. 1367 over the
state law claims8 and dismissed those claims. The present case represents the Plaintiffs decision
to re-file those state law claims in this Court.
As such, the present complaint before this Court is substantially identical to the second
amended complaint in Kimberlin v. NBC, et al. (I), filed on March 7, 2014, the final amended
complaint filed in that case before being dismissed. The section on the statement of facts is
virtually identical with only minor edits (including the elimination of a few defendants).
Meanwhile, the causes of action are similar except that 1) the Plaintiff has given up on claiming
defamation against all but two of the Defendants, and 2) he has added three new claims of
invasion of privacy. The Second Amended Complaint in this prior case can be viewed as ECF
No. 135 in Kimberlin v. NBC (I).
Furthermore, this is not the only civil suit this Plaintiff has filed against Mr. Walker. On
January 9, 2012, the Plaintiff filed a petition for a peace order in Montgomery County District
Court against Mr. Walker, claiming Mr. Walker had harassed and assaulted him. Kimberlin v.
The Court did not have original jurisdiction over those state-law claims because there wasnt
complete diversity between the Defendants and the Plaintiff, because the Plaintiff and Mr. Hoge
are both Marylanders.
8

Walker (I) No. 0601SP005392012 (Md. Mont. Co. Dist. Ct. 2012). In a February 8, 2012, peace
order hearing, the District Court found that Mr. Walker had not assaulted him, but had harassed
him. In a de novo appeal before this Court, the claim that Mr. Walker had harassed him was
dismissed by Judge Eric Johnson (now retired). Kimberlin v. Walker (I) No. 8444D (Md. Mont.
Co. Cir. Ct. 2012). Meanwhile, on May 22, 2012, the same Plaintiff sought a second peace
order, claiming Mr. Walker had harassed him.

Disregarding controlling Supreme Court

precedent by name, (Ret.) Judge Vaughey found that Mr. Walker had harassed the Plaintiff, and
forbade Mr. Walker from writing about Mr. Kimberlin for six months. Kimberlin v. Walker (II),
No. 0601SP019792012 (Md. Mont. Co. Dist. Ct. 2012). This was modified immediately upon
appeal to the Circuit Court because it was in violation of Mr. Walkers right to free expression 9
and at a de novo hearing the remainder of the peace order was dismissed. Kimberlin v. Walker
(II), No. 8526D (Md. Mont. Co. Cir. Ct. 2012).
Finally, on August 30, 2013, Mr. Kimberlin sued Messrs. Walker, Hoge, Akbar and three
other persons not a party to this case in Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co.
Cir. Ct. 2013), filed in this court.10 Kimberlin v. Walker, et al. had counts alleging harassment,
stalking, malicious prosecution (involving the same suits he complains about here), abuse of
legal process, defamation, false light, and intentional infliction of emotional distress. All but the
counts for defamation and false light were dismissed on motion for summary judgment. Those
remaining counts went to trial, and at the conclusion of the Plaintiffs case, the judge issued a
directed verdict in the Defendants favor. A certified copy of the complaint was filed in
On the same day this peace order was modified, restoring Mr. Walkers freedom of expression,
Mr. Walker was SWATted.
10
By the Plaintiffs own description, Kimberlin v. Walker, et al. was related to Kimberlin v.
NBC, et al. See Plaintiffs Notification of Related Court Ruling, ECF No. 32 in Kimberlin v.
NBC, et al. (I) (informing the court that Kimberlin v. Walker, et al. had survived a motion to
dismiss).
9

Kimberlin v. NBC, et al., Exhibit C to Defendant Hoges Reply to ECF No. 231, Plaintiff
Omnibus Opposition to Motions to Dismiss (ECF No. 236) and a courtesy copy is attached as
Exhibit A. A certified copy of the transcript of the July 1, 2014 hearing where most of the claims
were dismissed on summary judgment is attached as Exhibit B. A certified copy of the entire
trial transcript is attached as Exhibits C and D. There is a great deal of overlap between
Kimberlin v. Walker, et al. and the instant lawsuit, and Judge Eric Johnson ruled in favor of the
Defendants on the most substantive basis possible: truth. Specifically, he stated that [t]heres
not one scintilla of evidence in this case that the statements that were made by these individuals
were false. Exhibit D, p. 266.
That brings us to the present suit.
I.
EVERY CAUSE OF ACTION IS BARRED BY RES JUDICATA
The Plaintiffs prior defeat in Kimberlin v. Walker, et al. bars the entirety of this litigation,
both for Mr. Walker and for all Defendants. In Cochran v. Griffith Energy, 426 Md. 134, 43 A. 3d
999, 1002 (2012) the Maryland Court of Appeals provided a three prong test for when res
judicata applies under Maryland law, requiring that:
(1) the parties in the present litigation are the same or in privity with the parties to
the earlier litigation; (2) the claim presented in the current action is identical to
that determined or that which could have been raised and determined in the prior
litigation; and (3) there was a final judgment on the merits in the prior litigation.
Every single one of these factors are present in the instant action between Mr. Walker and the
Plaintiff. In relation to the first factor, the same Mr. Walker and Mr. Kimberlin are present in
both Kimberlin v. Walker, et al., and the instant action. Regarding to the second factor, nothing
would have prevented the Plaintiff from amending his complaint in Kimberlin v. Walker, et al., to
include every single cause of action asserted in the instant suit and thus these claims could have

been raised and determined in the prior litigation. Indeed, several of the claims are precisely
identical. With respect to the final factor, the directed verdict represented a final judgment on the
merits. Therefore, having met all three prongs of the test for the application of res judicata, the
current suit is barred.
This alone is sufficient reason to dismiss the case for Mr. Walker, and, in the name of
judicial economy, Messrs. Hoge, Akbar, and every other defendant in this case. Mr. Hoge and
Mr. Akbar should be dismissed because they were also defendants in Kimberlin v. Walker, et al.
As for the remaining Defendants, courts have regularly held that when defendants are alleged to
be in a conspiracy with each other by a plaintiff, they are in privity for the purpose of defensive
res judicata.11 In other words, while this memorandum will demonstrate that the Plaintiff has not
made proper, non-conclusory allegations that some or all of the Defendants have conspired
together for the purpose of stating a claim for which relief can be granted, infra at p. 38, the mere
fact that the Plaintiff has alleged that one exists, Compl. 189-191, estops him from denying it
for res judicata purposes. Every remaining Defendant is alleged to be in a civil conspiracy
together and, therefore, dismissal is appropriate for all Defendants under res judicata. In short, if
the Plaintiff really believes that the Defendants all conspired together to harm him, then he
should have sued all of them the first time.

See, e.g. Discon Inc. v. Nynex Corp., 86 F. Supp. 2d 154, 166 (W.D.N.Y. 2000) (alleged coconspirators are `in privity with one another for res judicata purposes), In re Teletronics, 762
F,.2d 185, 192 (2nd Cir. 1984) (alleged co-conspirator was in privity for res judicata purposes),
Goel v. Heller, 667 F.Supp. 144, 152 (D.N.J., 1987) (relying on Plaintiffs pleadings to establish
co-conspirator privity for res judicata purposes), McLaughlin v. Bradlee, 599 F.Supp. 839, 847
(D.D.C. 1984), Busse v. Steele, 2010 WL 3894558, at *2 (M.D. Fla. Aug. 18, 2010), Gambocz v.
Yelencsics, 468 F.2d 837, 841 (3rd Cir. 1972), Ananiev v. Freitas, 2014 WL 1400857, at *9
(D.D.C. Apr. 11, 2014), and Airframe Sys. Inc. v. Raytheon Co., 601 F.3d 9, 17 (1st Cir. 2010).
11

II.
THE PLAINTIFF IS COLLATERALLY ESTOPPED FROM CLAIMING THAT
MR. WALKER BATTERED HIM, OR INTENTIONALLY INFLICTED EMOTIONAL
DISTRESS UPON HIM; AND THE PLAINTIFF ALSO IS ESTOPPED FROM DENYING
THAT THE PLAINTIFF TRIED TO FRAME MR. WALKER FOR THAT NONASSAULT, THE PLAINTIFF COST MR. WALKER HIS JOB, AND THAT
THE PLAINTIFF IS A PEDOPHILE
Even if res judicata didnt apply, the other effect of the conclusion of Kimberlin v. Walker,
et al., is that collateral estoppel attaches to every question that was litigated in that case. In
Cosby v. Dept of Human Res., the Court of Appeals laid out four elements required for collateral
estoppel:
1.

Was the issue decided in the prior adjudication identical with the one
presented in the action in question?

2.

Was there a final judgment on the merits?

3.

Was the party against whom the plea is asserted a party or in privity with a
party to the prior adjudication?

4.

Was the party against whom the plea is asserted given a fair opportunity to
be heard on the issue?

425 Md. 629, 42 A.3d 596, 602 (Md. 2012). In Kimberlin v. Walker, et al., the Plaintiff was
allowed to attempt to prove that he was defamed or put in a false light by any of the following
categories of assertions: that the Plaintiff cost Mr. Walker his job; that Mr. Walker didnt batter
the Plaintiff and the Plaintiff attempted to frame Mr. Walker for that crime; that the Plaintiff is a
pedophile; that the Plaintiff seduced his future wife when she was fourteen years old (and he was
in his forties) and continued that sexual relationship until she became of age; and that he
attempted to seduce Mrs. Kimberlins then-twelve-year-old cousin.12 The Plaintiff failed to
prove he had been defamed or put in a false light for the most substantive reason possible. The
defendants in Kimberlin v. Walker, et al., didnt deny making these statementsthey freely
The relevance of the Plaintiffs pedophilia-related estoppel comes in when discussing the
argument that the Plaintiff is defamation-proof. See infra p. 13-19.
12

admitted to them. Instead, the court found that [t]heres not one scintilla of evidence in this
case that the statements that were made by these individuals were false. Exhibit D, p. 266.13
Now the Plaintiff comes to this Court claiming that it is somehow defamation, or placing
him in a false light, to claim that 1) he cost Mr. Walker his job, or 2) Mr. Walker didnt assault
him and the Plaintiff actually attempted to frame him for this crime. These issues are identical
between the instant suit and Kimberlin v. Walker, et al., meeting the first part of the test for the
application collateral estoppel. Likewise, Judge Johnsons ruling meets the requirement that
there be a final judgment, meeting the second prong of the test. The Plaintiff is the same person,
meeting the third part of the test for collateral estoppel, and the Plaintiff was given every
opportunity to be heard meeting the fourth.
Collateral estoppel also applies equally to the question of whether Mr. Walker battered
the Plaintiff on January 9, 2012, because of the outcome of Kimberlin v. Walker, et al. In that
case, Mr. Walker freely admitted in court that he stated that he did not batter the Plaintiff 14 and,
therefore, any evidence the Plaintiff produced purporting to show an assault or injury was
necessarily forged or altered in an attempt to frame him for a crime. To show Mr. Walker
defamed him or put him in a false light, the Plaintiff would have had to prove Mr. Walkers
assertions false. The only way that the Plaintiff could have proven this statement false was to
prove that Mr. Walker had battered him and, indeed, hospitalized him. Having failed to prove
such battery and, therefore, any falsehoods about such alleged battery, the Plaintiff cannot relitigate the issue here.
Telnikoff v. Matusevitch, 347 Md. 561, 702 A. 2d 230, 246 (1997) (in all defamation actions,
truth is no longer an affirmative defense to be established by the defendant, but instead the
burden of proving falsity rests upon the plaintiff (internal citations and quotation marks
omitted)).
14
Mr. Walker stated that his only contact with the Plaintiff or his property was in removing the
Plaintiffs iPad from his hands without injury, and that this was done in self-defense.
13

10

In fact, the issue of the alleged assault is twice estopped. As noted above, Kimberlin v.
Walker, et al., was not the first time the Plaintiff has attempted to litigate this issue. Within half
an hour of the alleged battery, on January 9, 2013before the Plaintiff claimed to have gone to
the hospitalthe Plaintiff filed for a Peace Order in Montgomery County District Court
asserting that Mr. Walker had assaulted and harassed him.

Kimberlin v. Walker (I) No.

0601SP005392012 (Md. Mont. Co. Dist. Ct. 2012). In an ex parte temporary peace order
hearing (also before he claimed he went to the hospital), the court held that assault (as defined in
MD. CODE crim. law 3-201) and harassment had occurred. Then, on February 8, 2012, a final
peace order hearing was held with both parties present, and the court determined that while
harassment had occurred, no assault had occurred. 15 An appeal in Montgomery County Circuit
Court also found that no harassment had occurred and dismissed the entire petition.

Mr.

Kimberlin was at all times granted a full opportunity to present evidence and make his claims;
the judge simply believed Mr. Walker. Therefore, the matter is settled in Mr. Walkers favor, and
he shouldnt be forced to litigate the matter yet again.
Finally, collateral estoppel applies to the question of whether Mr. Walker intentionally
inflicted emotional distress on the Plaintiff or engaged in malicious prosecution. 16 Both of these
claims were part of the original complaint in Kimberlin v. Walker, et al., and were dismissed in a
motion for summary judgment hearing on July 1, 2014. Accordingly, the claims that Mr. Walker
battered the Plaintiff, maliciously prosecuted the Plaintiff, intentionally inflicted emotional
A certified copy of the peace order petition, as well as the temporary peace order and the final
peace order (determining that no battery occurred) was attached as Exhibit A to Mr. Walker first
reply in relation to a motion dismiss the Plaintiffs First Amended Complaint in Kimberlin v.
NBC (I), et al. and can be viewed on PACER at ECF no. 55. For this Courts courtesy, a copy of
this document is attached as Exhibit E.
16
This is mentioned because the Plaintiff often claims that Mr. Walker has engaged in malicious
prosecution throughout his complaint.
15

11

distress upon the Plaintiff, or that any Defendant defamed him or placed him in a false light by
claiming that 1) the Plaintiff cost Mr. Walker his job, 2) attempted to frame him for a crime, or 3)
the Plaintiff is a pedophile who attempted to seduce girls as young as twelve, is barred by
collateral estoppel.
III.
THE PLAINTIFF FAILS TO PROPERLY PLEAD FALSE LIGHT
Under Maryland Law, the elements of false light invasion of privacy are defined as
follows:
One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion of
his privacy, if
(a) the false light in which the other person was placed would be highly
offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other would
be placed.
Bagwell v. Peninsula Regional Medical, 106 Md.App. 470, 513-514 (1995). In addition to these
elements that are common to most states, Maryland imposes a second, higher burden. As stated
in Piscatelli v. Van Smith, [a]n allegation of false light must meet the same legal standards as an
allegation of defamation. 35 A.3d 1140, 1146-47, 424 Md. 294 (2012) (citing Harnish v.
HeraldMail Co., 264 Md. 326, 337, 286 A.2d 146, 15253 (1972); Phillips v. Wash. Magazine,
Inc., 58 Md.App. 30, 36 n. 1, 472 A.2d 98, 101 n. 1 (1984)). Accordingly, [i]n Maryland, a
claim for false light invasion of privacy may not stand unless the claim also meets the standards
for defamation, Crowley v. Fox Broadcasting Co., 851 F.Supp. 700, 704 (D. Md., 1994).
This means that any requirement or doctrine that might appear at first glance to apply
solely as a bar to defamation actions, operates equally to bar false light actions. These include:

12

1) the requirement of specificity in pleading, 2) a shorter statute of limitations, and 3) the


doctrine of defamation-proof plaintiffs. The Plaintiff has indeed failed to plead with sufficient
specificity each instance of alleged false light. He has included statements that, on the face of
his complaint, fall outside the statute of limitations. Furthermore, this Plaintiff has engaged in
such reprehensible behavior in the past that he has made it impossible to noticeably harm his
reputation further: he is defamation-proof.
Finally, in addition to these failings, the Plaintiff has failed to properly plead malice. He
says various forms of the word malice now and then in a conclusory manner, but he does not
plead facts and circumstances that, if true, would lead this Court to conclude that Mr. Walkeror
any of the Defendantsmet the test for malice. Indeed, the Plaintiff himself seems to be unsure
whether the allegations the Defendants made were false, simultaneously claiming that these
statements include private facts the Defendants should not have publicized. See infra at pp. 2628. For all of these reasons, the Plaintiff has failed to properly plead false light, and, therefore,
this claim should be dismissed.
A.

The Plaintiff is Defamation-Proof and, Therefore, No Cause of Action Can Lie For
False Light Invasion of Privacy
As noted above, no claim can lie for false light that cannot lie for defamation.

Defamation, in turn, is about the right to protect ones reputation from harm. Defamation, made
up of the twin torts of libel and slander, is an invasion of the right of personal security in
reputation and good name. General Motors Corp. v. Piskor, 27 Md.App. 95, 113, 340 A.2d 767,
(1975) (citing W. Prosser, LAW OF TORTS 111, at 737, (4th ed., 1971)) revd on other grounds,
277 Md. 165, 352 A.2d 810 (1976). Thus, if there is no harm to reputation, there is no cause of
action for defamation.

13

To say that the Plaintiff has already damaged his reputation is an understatement. The
Plaintiff is an extremely violent felon with an extensive criminal history. Most significantly, the
Plaintiff is a convicted terrorist:
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). Mr. DeLongs widow won a judgment
against the Plaintiff in civil court, Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. Sup. Ct. 1994),
which the Plaintiff proceeded to cheat her out of, his conduct becoming so outrageous that his
parole was revoked because of it. Kimberlin v. Dewalt, 12 F. Supp. 2d 487 (D. Md. 1998). He
sued this widow, her lawyer, the probation officer, and various Bureau of Prisons and
Department of Justice officials, id. at 490, for attempting to collect this debt.

See also

Kimberlin v. DOJ, 788 F. 2d 434 (7th Cir. 1986) (affirming dismissal of that suit). All that is in
addition to being a convicted perjurer, Dewalt, 12 F. Supp. 2d at 490 n. 6, and drug smuggler
U.S. v. Kimberlin, 805 F. 2d at 225-238. To claim that any Defendant harmed the reputation of a
man such as the Plaintiff is farcical.
However, many jurisdictions have refused to allow such a farce to go on, holding that
such a plaintiff can so harm his reputation that it is not capable of being measurably harmed any
further, thus becoming defamation-proof (or libel-proof). This Court should do the same.
Particularly instructive on this point is Cardillo v. Doubleday & Co., Inc., 518 F. 2d 638 (2nd Cir.

14

1975). Cardillo involved claims of defamation, and that plaintiff also had an extensive rap sheet
that was described as follows:
appellant is serving 21 years, sentenced for assorted federal felonies, including
separate convictions for stolen securities and bail-jumping in the United States
District Court for the Southern District of Florida, bail-jumping in the District of
Maryland, and conspiracy and interstate transportation of stolen securities in the
District of New Hampshire. He has been previously convicted of receiving stolen
property and numerous minor infractions of the law in Massachusetts where he
lived. His answers to interrogatories indicate that he was in [mobster Vincent]
Teresas company frequently from 1963-69... and was :directly involved with
Teresa in several minor crimes, none of which were noteworthy or profitable.
Id. at 640.
In Cardillo, the Second Circuit concluded that the plaintiffs rap sheet was sufficient to
render him defamation-proof as follows:
we consider as a matter of law that appellant is, for purposes of this case, libelproof, i. e., so unlikely by virtue of his life as a habitual criminal to be able to
recover anything other than nominal damages as to warrant dismissal of the case,
involving as it does First Amendment considerations.
518 F. 2d at 639. See also Jackson v. Longscope, 394 Mass. 577 (1985) (stating the perpetrator
of the hitch-hike murders was defamation-proof) and Ray v. Time, Inc., 452 F. Supp. 618 (W.D.
Tenn.1976) (applying the defamation-proof doctrine to James Earl Ray, the murderer of Rev.
Martin Luther King, Jr.). If Robert Cardillos history of mainly non-violent offenses of little
fame rendered him defamation-proof, then certainly a convicted bomber who terrorized an entire
town for nearly a week and ultimately cost a man his lifenot to mention his activities as a drug
kingpinshould render the instant Plaintiff equally defamation-proof.
Further, since the operative question is whether the alleged defamation could actually
damage a plaintiffs reputation or if the damage had already been done, courts have also held that
prior negative publicity should be taken into account when considering whether one is
defamation-proof. Swate v. Schiffers, 975 S.W.2d 70, 74 (Tex. App., 4th Dist. 1998) (the earlier
15

newspaper articles and the disciplinary orders describe conduct that would have ruined Swates
reputation prior to the publication of Schifferss article.). In 1999, Slate magazine called the
Plaintiff a habitual liar, and all-around sociopath. 17 A newspaper article published just after his
convictions for the Speedway Bombings accused the Plaintiff of plotting behind bars to (1) frame
someone else for his crimes, (2) arrange for the murder of one of his prosecutors and several
other persons, and (3) to attempt to destroy the political career of the same prosecutor in a sting
operation.18 A book written with the Plaintiffs help by Mark Singer insinuated that he was a
pedophile engaged in a relationship with a ten year old girl named Debbie Barton. 19 This
authorized biography, Dewalt, 12 F. Supp. 2d at 490-91, also suggested that he was involved in
the murder of Julia Scyphers, the grandmother of the young suspected victim, CITIZEN K at 82 et
seq, and that the bombings were committed in order to distract the police from that murder, id. at
89 et seq.20

Singers book also accuses Kimberlin of vexatious litigation 21 and features

Kimberlin speaking in detail about his life as a drug kingpin (CITIZEN K at 60-61 and passim),
confessing to tax evasion (id. at 61-62), confessing to a racist prison fight where he called his

A.O. Scott, Cody Shearer: If He Didnt Exist, the Vast Right Wing Conspiracy Would Have
Invented Him, SLATE, May 22, 1999 (available at http://www.slate.com/articles/
news_and_politics/assessment/1999/05/cody_shearer.html), visited on December 7, 2013.
18
R. Joseph Gelarden, Kimberlin Case a Maze of Murder, Deceit, INDIANAPOLIS STAR, October
18, 1981 (available at http://archive.indystar.com/assets/pdf/BG164276919.PDF), visited on
December 7, 2013.
19
Mark Singer, CITIZEN K: THE DEEPLY WEIRD AMERICAN JOURNEY OF BRETT KIMBERLIN 7678 (1996) (CITIZEN K). Singer identifies the Plaintiffs young suspected victim as Jessica
Barton.
20
See also RetroIndy: The Speedway Bombings, Part I: For a Week in 1978, the Town of
Speedway was Terrorized by a Serial Bomber, INDIANAPOLIS STAR (available at http://www.
indystar.com/article/99999999/NEWS06/100919012/), visited on December 7, 2013 and
RetroIndy: The Speedway Bombings, Part II: Building the Case Against Brett Kimberlin
INDIANAPOLIS STAR (available at http://www.indystar.com/article/99999999/NEWS06/
100919013), visited on December 7, 2013.
21
There could be no mistaking [Brett Kimberlins] fundamental jurisprudential strategy: Sue the
bastards; then sue them more; then some more. CITIZEN K at 183.
17

16

opponent the n-word repeatedly (id. at 183); and confessing to sabotaging military equipment
thus placing our troops in danger (id. at 184).
Indeed, the Plaintiffs recent litigation itself has further harmed his reputation.

In

Kimberlin v. NBC, et al. (I), the same Plaintiff was caught red-handed forging a summons. 22 The
Plaintiff protested innocence, a claim that was vitiated when he was caught altering another
document in Kimberlin v. Walker, et al.23 Also, there is the harm to his reputation caused by the
outcome in Kimberlin v. Walker, et al. itself. As noted above, following the Plaintiffs defeat in
Kimberlin v. Walker, et al., he is collaterally estopped from denying (for defamation purposes) 1)
that he attempted to frame Mr. Walker for a crime; 2) that he is a pedophile; 3) that he seduced
his wife when she was fourteen and he was in his forties; and 4) that he also attempted to seduce
a twelve year old girl around that time. That is, any person can report these claims as fact, and
the Plaintiff is estopped from claiming in a defamation suit that they are false. One need only
look to the Plaintiffs words to establish that those claimswhich the Plaintiff cannot claim is
untruehave harmed his reputation. The Defendant has repeatedly claimed that because of the
accusations that he is a pedophile, his eldest daughter can no longer hold sleepovers in his home
to his great chagrin. See, e.g., Exhibit B, p. 40, lines 21-24.
Exactly what negative conclusions does the Plaintiff think a reader will draw about him
based on allegedly implied involvement in SWATtings? That he is capable of acting with
indifference to human life? Leaving a bomb near a high school football game so that Carl
DeLong could find it and blow off his leg would have already proven that to the readers
See Verified Response to February 21, 2014 Order to Show Cause Re Twitchy Summons,
ECF No. 102 (admitting to forging a summons in this case but pleading that he was somehow
ignorant of the fact that forging a court document was wrong).
23
Supplemental Memorandum of Defendants Michelle Malkin and Twitchy in Support of
Request for Dismissal (ECF No. 124) (documenting how the Plaintiff admitted to a forgery in
Kimberlin v. Walker, et al.).
22

17

satisfaction, as would his sabotage of military equipment, the alleged jailhouse murder plots, and
the suspicion of involvement in the murder of Julia Scyphers. Does he think he was defamed by
the suggestion that he would be involved in deceiving law enforcement?

The previously

published reports that he tried to frame someone else for the Speedway Bombings, the
adjudication that he did try to frame Mr. Walker for a crime, as well as Mark Singers suggestion
that he committed the Speedway Bombings in order to deflect the police from investigating the
murder of Julia Scyphers establishes that.
Or consider the specific harm that Mr. Kimberlin alleges that the Defendants have done
to his reputation, claiming in Compl. 134, the Defendants conduct make[s] Plaintiff appear
odious, infamous and/or frightening. Any person familiar with his proven career in crime is
likely to draw the same conclusion.24 One doesnt need to accuse a man who earned the
nickname of The Speedway Bomber of SWATting to make people think he is odious,
infamous, and frightening. A perusal of publicly available court records is sufficient. The
Plaintiffs reputation is so poor it is difficult, if not impossible, to harm it further.
As the Supreme Court made clear as recently as 2012, the state does not have a general
power to prohibit falsehoods.25 For instance, in U.S. v. Alvarez, 132 S. Ct. 2537 (2012), the
Supreme Court was confronted with a man who falsely and despicably claimed he had served in
the Marines and was a recipient of the Congressional Medal of Honor. The government had
sought to prosecute him under the Stolen Valor Act which punished falsehoods about military
service. The Supreme Court struck down the act under the strict scrutiny standard, e.g. Perry
Ed. Assn. v. Perry Local Educators Assn., 460 U.S. 37 (1983) (a content-based restriction on
Likewise, those parents who are allegedly refusing to allow their underage daughters to sleep
over at Mr. Kimberlins house seem to have also decided that he was frightening apart from
any the alleged instances of false light or defamation in this case.
25
Mr. Walker maintains he has never knowingly published a falsehood about Mr. Kimberlin.
24

18

speech can only be upheld if it is necessary to serve a compelling state interest and... narrowly
drawn to achieve that end). Rejecting the view that there is any general exception to the First
Amendment for false statements, 132 S. Ct. at 2544, the Alvarez court found there was no
compelling interest in preventing falsehoods that do not harm others.
Ordinarily, preventing defamation is a compelling state interest because of the harm done
to a victims reputation. Alvarez, 132 S. Ct. 2545. However, in this particular and unique case,
there is nothing compelling about protecting this Plaintiffs reputation. As in Cardillo, the
instant Plaintiff might at best obtain nominal damages, and preventing a nominal harm cannot be
a compelling interest. Rather, if the Plaintiff feels someone has said something false about him,
he can appeal to the same court of public opinion as the Defendants have. The theory of our
Constitution, the Alvarez court explained, is that the best test of truth is the power of the
thought to get itself accepted in the competition of the market[.] 132 S. Ct. at 2550 (internal
quotations and citations omitted). That is where the Plaintiffs grievances, real or imagined,
belongand not in this courthouse.
Therefore, no claim can lie for defamation and if a claim cannot lie for defamation, it
cannot lie for false light, either. Piscatelli, 35 A.3d at 1146-47. For this reason alone, all claims
based on false light should be dismissed.26
B.

The Plaintiff Fails to Plead False Light with Sufficient Specificity


As noted above, a false light claim will fail if it cannot meet the standards for defamation.

In Piscatelli, the Court of Appeals explained that


In order to plead properly a defamation claim under Maryland law, a plaintiff
must allege specific facts establishing four elements to the satisfaction of the factMr. Walker doesnt address defamation separately from false light because the Plaintiffs claim
for defamation is solely against Mr. Akbar and National Bloggers Club (NBC). However, this
doctrine necessarily applies to defamation actions, justifying dismissal of the defamation claims
against those two defendants sua sponte in the name of judicial economy.
26

19

finder: (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.
35 A.3d at 1147 (emphasis added). That means in each instance the Plaintiff must provide a
specific description of the content of the alleged statements, as well as when and how they
were communicated. Brown v. Ferguson Enters., Inc., No. 12-CV-1817-CCB at *5 (D. Md.
Dec. 11, 2012).27 In short, the Plaintiff must allege who, what, where, when, and why in relation
to each alleged defamatory statement. The purpose of this rule is to give the court enough
information to determine for itself whether the alleged statements actually have potential
defamatory meaning. In this way the Court can determine at an earlier stage in litigation whether
the expression in question is lawful, in line with the policy behind MD CODE Cts. & Jud. Proc.
5-807 (disfavoring lawsuits designed to suppress free expression). This, in turn, promotes the
values encapsulated by the First Amendment and in Article 40 of the Maryland Declaration of
Rights by ensuring that those who engage in protected speech are not subjected to protracted and
frivolous civil actions as a result of engaging in constitutionally protected speech. The Plaintiff
serially fails to meet this requirement of specificity, both in relation to Mr. Walker and in relation
to all of the other Defendants and, therefore, fails to properly allege that the speech is defamatory
and unprotected by the First Amendment.
It is particularly important to require the Plaintiff to plead when such statements occurred
because MD CODE Cts. & Jud. Proc. 5-108 states that [a]n action for assault, libel, or slander
shall be filed within one year from the date it accrues. That statute of limitations was tolled on
See also Davidson-Nadwodny v. Wal-Mart Assoc., Inc., 2008 WL 2415035 at *5 (D. Md. 2008)
(dismissing a defamation case under Maryland law because it does not specify what actual
defamatory statements were made by defendants... and to whom the statements were made);
Holt v. Camus, 128 F.Supp.2d 819, 820 (D. Md., 2000) (requiring a plaintiff pleading defamation
and false light to allege what was said, and the time, place and circumstances of the statement);
Gainsburg v. Steben & Co., 838 F.Supp.2d 339, 344 (D. Md. 2011) (stating that a plaintiff must
specifically allege each separate instance of defamation).
27

20

October 15, 2013, when Kimberlin v. NBC (I) was filed in Federal Court. Although 5-108
doesnt specifically mention false light, Smith v. Esquire, Inc., 494 F.Supp. 967, 969 (D. MD,
1980) held that when a false light claim is essentially analogous to a libel claim... [it] should be
governed by the same statute of limitations. While Smith was rejected by the Court of Special
Appeals in Allen v. Bethlehem Steel Corp., 76 Md. App. 642 (1988), Allen is itself in conflict
with the Court of Appeals declaration in Piscatelli that [a]n allegation of false light must meet
the same legal standards as an allegation of defamation. 35 A.3d at 1146-47. Likewise, virtually
every other jurisdiction that has faced the same dilemma (a shorter statute of limitations for
defamation than false light invasion of privacy) has applied the shorter statute of limitations for
defamation to false light claims.28 This Court is, therefore, urged to reject Allen and follow
Smith, the authorities in other states and the cues of the Court of Appeals in Piscatelli, and apply
the one-year statute of limitations for all false light claims.
Finally, in all cases the Plaintiff must allege malice. The word malice is not used in
Bagwells description of the elements of false light, it does state that in order to establish false
light the Plaintiff must show (in part) that the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter[.] 106 Md.App. at 513-514 (emphasis
added). This is precisely the same as the malice standard enunciated in New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964): that the statement be made with knowledge that it was false
or with reckless disregard of whether it was false or not. Therefore, in order to plead false light,
the Plaintiff must properly allege malice.
See Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108, 969 A.2d 1145 (N.J. Super.,
2009); Eastwood v. Cascade Broadcasting Co., 106 Wash.2d 466, 722 P.2d 1295, 1299 (1986);
Fellows v. National Enquirer, Inc., 42 Cal.3d 234, 228 Cal.Rptr. 215, 225 n. 12, 721 P.2d 97, 106
n. 12 (1986); Covington v. The Houston Post, 743 S.W.2d 345, 348 (Tex.Ct.App.1987); Gannett
Co., Inc. v. Anderson, 947 So.2d 1 (Fla. App., 2006); Magenis v. Fisher Broadcasting, Inc., 103
Or.App. 555, 798 P.2d 1106 (1990); Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir.1983); Uhl v.
Columbia Broadcasting Systems, 476 F.Supp. 1134, 1137 (W.D.Pa.1979).
28

21

In any case, the Plaintiff has alleged three general categories of statements that allegedly
placed him in a false light: statements relating to 1) SWATting, 2) the loss of Mr. Walkers job,
and 3) the alleged assault by Mr. Walker against the Plaintiff. In each case, the Plaintiff has
failed to properly plead false light.
1.

The Plaintiff Fails to Properly Plead False Light in Relation to SWATting

The Plaintiff fails to make meet the particularity requirements in relation to any of the
alleged statements that the Plaintiff SWATted Defendants Frey, Erickson, or Walker. While this
memorandum will not go into detail relating to the failures of each purported statement, a few
notes and representative examples should suffice.
First, the words are often not even quoted. See, e.g., Compl. 82, 83, 85, 98. Second, the
Plaintiff often fails to even allege that a statement was made blaming him for the SWATtings,
instead only claiming that the alleged statements imply or impute that he was involved.29
Third, where a statement is alleged and quoted, the quoted material often doesnt clearly
accuse the Plaintiff of anything. For instance, in Compl. 76 the Plaintiff writes Defendant Frey
stated that Plaintiff could have gotten me killed, but does not show with what words the
Plaintiff was named (and in fact, Mr. Frey did not name the Plaintiff). Likewise, in 81, the
Plaintiff quotes the anonymous blogger Ace of Spades as saying, [t]hey are literally going to
get someone killed, but doesnt show that the Plaintiff is one of those people included in the
term they. Similarly, in 75, the Plaintiff quotes a statement allegedly from Mr. Walker (Mr.
Walker does not recall making this statement), that is, on its face, only discussing the SWATting
of Mike Stackwhich is not the subject of this suitand it is ambiguous as to whether he is
blaming Kimberlin, Rauhauser, or TSG for the SWATting. As D.C. Circuit said in Ollman v.
See, e.g. Compl. 77 (said title and article imputed that Plaintiff [SWATted] conservative
bloggers), 82 ([o]n June 25, 2012, Defendant Stranahan wrote an article on Breitbart.com,
implying that Plaintiff was responsible for the [SWATting] of Aaron Walker).
29

22

Evans, 750 F. 2d 970, 980 (D.C. Cir. 1984) statements that are loosely definable or variously
interpretable cannot in most contexts support an action for defamation. Thus none of these
statements can constitute defamation.
Further, in every case, the Plaintiff doesnt make any non-conclusory allegations that the
statements or implications are made with knowledge that they are false, or reckless disregard for
the truth. The Plaintiff doesnt allege that any Defendant knows who the SWATter(s) are, so how
would any of them know if any statement is false? Moreover, in Compl. 102 the Plaintiff writes
[m]any of the Defendants... believed that Plaintiff was involved with the swattings negating
the element malice for an unknown subset of the Defendants. The remainder of the time, the
Plaintiff at best alleges negligence, 138 (without conducting any due diligence), and does so
in only a conclusory fashion. Finally, the Plaintiff does not once properly allege that he was
proximately harmed by any such implications. Thus, the Plaintiff has not properly alleged that
any Defendant put the Plaintiff in a false light as it relates to any possible role the Plaintiff had in
the SWATtings of Walker, Frey and Erickson.
2.

The Plaintiff Fails to Properly Plead False Light in Relation to the Loss of Mr.
Walkers Job

First, this issue is precluded by collateral estoppel as outlined supra pp. 9-12. Mr.
Kimberlin had his day in court on the issue of whether he caused Mr. Walkers termination, and
he lost.
Second, the Plaintiff has failed to allege with appropriate particularity that Defendant
Walker (or anyone else) had accused the Plaintiff of causing Mr. Walkers termination.
Specifically, the Plaintiff failed to specify what statements various persons made to suggest that
the Plaintiff caused the termination of Mr. Walkers job. E.g. Compl. 49, 76. The Plaintiff also

23

doesnt specify the time and place statements were made and often doesnt specify the identity of
the person making the alleged false statements or implications.
Third, the Plaintiff does not properly allege malice. It might be strange at first glance to
think that a person could lack knowledge about his own firing, and the Plaintiff quotes from an
alleged termination email laying out some claims about why Mr. Walker was terminated.
However, it is well understood in employment law that the stated reason for an employment
decision might not be the real reason for that decision. See, e.g. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) (a legitimate, non-discriminatory reason for an employment decision
will not shield an employer from discrimination claims where it is proven to be a pretext for
racial animus). This seems even more likely to be the case when the news is delivered by outside
counsel. This means that to prove why Mr. Walker was fired, the Plaintiff needs to plead more
than simply the reason proffered by a former employers lawyer: the Plaintiff must allege facts
demonstrating that it was actually the reason and not merely a pretext. Further, even if he
adequately pled that this was the actual reason for firing, he has to also plead that Mr. Walker
knew that this was the reason or had a reckless disregard when determining whether it was the
reason. For instance, in Schnabel v. Abramson, 232 F. 3d 83 (2nd Cir. 2000) the court felt that the
question of the reason why a plaintiff was terminated was a close enough question for a jury to
decide, demonstrating that reasonable people can disagree on the reason for a termination
decision. So the Plaintiff has failed to properly plead that Mr. Walker was not fired because of

24

the Plaintiffs conduct,30 or that any person exhibited malice by claiming the Plaintiff was the
cause of Mr. Walkers termination.31
Finally, the Plaintiff makes no allegation of any damage proximately caused by these
unspecified statements. Thus, the Plaintiff has failed to properly allege any Defendant placed
him in a false light in relation to the loss of Mr. Walkers job.
3.

The Plaintiff Fails to Properly Plead False Light in Relation to the Alleged Battery

Once again, the Plaintiff is barred by the principle of collateral estoppel from claiming
that Mr. Walker assaulted (or battered) him at all. The matter is settled in Mr. Walkers favor,
and he shouldnt be forced to litigate the matter a third time.
Further, even if collateral estoppel didnt apply, the Plaintiff has failed to properly allege
that any Defendant made defamatory statements regarding this alleged assault. There is not one
single quoted statement by any Defendant related to the alleged assault, and, once again, the
Plaintiff also doesnt name the time and place of such a statement, or the identity of the person
making it.
Moreover, the Plaintiff doesnt properly allege malice. As noted above, Mr. Walker has
repeatedly claimed he acted in self-defense, and Montgomery Countys courts have now twice
determined that he was telling the truth. The Plaintiff apparently thinks it is malicious to agree
with this Court.
Finally, the Plaintiff failed to allege that these alleged falsehoods proximately caused the
Plaintiff damage. As a result, the Plaintiff has not properly alleged that the Defendants placed
Indeed, in an email to a co-Defendant the Plaintiff bragged that he had caused Mr. Walkers
termination and threated to visit similar consequences on that Defendant. See Attachment A to
Levy Affidavit in his Opposition to Motion for Leave to Pursue Discovery to Identify
Defendant Ace of Spades filed as ECF no. 75-1 (pp. 3-4) in Kimberlin v. NBC, et al. (I).
31
In fact, it is even harder to allege malice in relation to the other defendants since the Plaintiff
does not allege that they are first party witnesses to Mr. Walkers termination.
30

25

him in a false light in relation to this alleged assault or on any other subject. For all of these
reasons, all claims for false light should be dismissed for Mr. Walker and, in the name of judicial
economy, for all Defendants.
IV.
THE PLAINTIFF FAILS TO PROPERLY PLEAD PUBLICITY OF PRIVATE FACTS, BY
FAILING TO ALLEGE THAT THE DEFENDANTS PUBLICIZED ANYTHING THAT
WAS PRIVATE OR A FACT
This is one of three new causes of action based on invasion of privacy that the Plaintiff
has alleged in the new case. That is, he did not list them as causes of action in Kimberlin v. NBC
(I), and didnt therefore allege facts to support this cause of action in that statement of facts. So
it should not be a surprise that, having submitted virtually identical statement of facts in this
case, the Plaintiff has failed to allege facts sufficient to sustain these new causes of action, too.
Under Maryland law, in order to plead the tort of publicity given to private facts the
Plaintiff must allege the following elements:
One who gives publicity to a matter concerning the private life of another is
subject to liability to the other for unreasonable invasion of his privacy, if the
matter publicized is of a kind which
(a)

Would be highly offensive to a reasonable person, and

(b)

Is not of legitimate concern to the public.

Hollander v. Lubow, 277 Md. 47, 55, 351 A. 2d 421 (1976). However, the only claims that the
Plaintiff alleges that the Defendants gave publicity to was 1) allegations and implications that he
was involved in the SWATting of Messrs. Walker, Frey and Erickson, 2) allegations that he
caused Mr. Walker to lose his job, and 3) allegations that he attempted to frame Mr. Walker for
the crime of assault.
This almost seems too obvious to say, but in order to claim that the Defendants have
publicized private facts, the Plaintiff must first admit they are true:
26

A fact is a proposition which correctly describes a state of affairs in the world.


To say that something is a fact is necessarily to say that it is true. It is for this
reason that one never encounters the phrase false facts, while the phrase true
facts is a barbarous redundancy.
Doe v. U.S., 83 F. Supp. 2d 833, 841 (S.D. Tex. 2000); see also Uranga v. Federated
Publications, Inc., 138 Idaho 550, 67 P. 3d 29, 32-33. (2003) ([t]he cause of action for public
disclosure of embarrassing private facts provides for tort liability involving a judgment for
damages for publicity given to true statements of fact (emphasis added)). As Dean Prosser has
said, this is a cause of action in publicity, of a highly objectionable kind, given to private
information about the plaintiff, even though it is true and no action would lie for defamation.
Hollander, 277 Md. at 57 (emphasis added). In Doe, like in the instant case, the plaintiff was
claiming invasion of privacy by publicity of private facts, while simultaneously claiming that
they were not true. The court dismissed the claim, stating that in contrast to defamation and false
light, where the harm is caused by falsehoods being uttered about a person, the tort of publication
of private facts is designed to redress reputational injuries made all the more painful because the
public revelations about deeply private and intimate matters are undeniably true. 83 F. Supp. 2d
at 842.
Further, even if we read the assertion of this cause of action as a spontaneous confession
by the Plaintiff that he was indeed involved in the SWATting of Defendants Walker, Erickson and
Frey, that he did cause Mr. Walker to lose his job, and that he did try to frame Mr. Walker for
batterylaying waste to the majority of the rest of his complaintnone of these are private
facts. For instance, reports on the commission and investigation of crimes such as SWATting
and crimes related to attempting to frame a person for a crime are not private facts. Maryland
courts have regularly held that information about a persons criminal history is not private facts.
Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 502 A. 2d 1101 (1986). Meanwhile, the
27

Supreme Court has protected expression related to a matter of paramount public import: the
commission, and investigation, of a violent crime which had been reported to authorities.
Florida Star v. BJF, 491 U.S. 524, 536-37 (1989) (invalidating a law that made it a crime to
reveal the name of a rape victim), while Uranga applied this reasoning to state that there cannot
be private facts in relation to criminal conduct. Finally, the only person who might arguably
have a right to privacy regarding the facts of Mr. Walkers termination is Mr. Walker. The
Plaintiff cannot claim it is a fact that he interfered with Mr. Walkers livelihood, but somehow
Mr. Walker discussing this matter is an invasion of the Plaintiffs privacy.
For these two reasonsthe Plaintiff has not alleged that any true facts were publicized
and has not properly alleged that they were privatethe Plaintiff has failed to allege the tort of
invasion of privacy by publicity into private facts, justifying dismissal of this count.
V.
THE PLAINTIFF FAILS TO PROPERLY PLEAD INVASION OF PRIVACY BY
INTRUSION INTO SECLUSION, BY FAILING TO ALLEGE UNLAWFUL INTRUSION,
OR INVOLVEMENT IN PRIVATE MATTERS
The Plaintiff, for the first time in this case, also alleges invasion of privacy by intrusion
into seclusion, and also fails to plead its elements. The Court of Appeals has described unlawful
intrusion into seclusion as follows:
One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another, or his private affairs or concerns, is subject to liability to the
other for unreasonable invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.
Hollander, 351 A. 2d at 55. The Plaintiff has neither alleged unlawful intrusion nor that any
alleged intrusion was into the Plaintiffs seclusion.
First, the Plaintiff has not alleged unlawful intrusion. Unlike defamation, the intrusion
on seclusion tort deals with the manner in which Defendant obtained the information rather than

28

the truth or falsehood of the information itself. Trundle v. Homeside Lending, Inc., 162
F.Supp.2d 396, 401 (D. Md., 2001). The Plaintiff never alleges that any of the Defendants did
anything outside of using the ordinary tools of journalismasking persons questions, examining
public records or reciting eyewitness accountsand, therefore, the Plaintiff has failed to allege
intrusion in a manner which would be highly offensive to a reasonable person. Id. See also
Beaumont v. Brown, 65 Mich. App. 455, 463, 237 NW 2d 501 (1975) (holding that merely
writing a letter was not an unlawful method of intrusion); Wilson v. Sysco Food Services of
Dallas, Inc., 940 F. Supp. 1003, 1014 (N.D. Tex. 1996) (holding that inquiries into Plaintiffs
private affairs, particularly her sexual activities was not an unlawful method of intrusion).
Rather, [a]n essential element of this tort is a physical intrusion analogous to a trespass.
Pierson v. News Group Publications, Inc., 549 F. Supp. 635, 640 (S.D. GA 1982). Like in
Beaumont, the instant Plaintiff in reality objects to the allegedly false and scurrilous comments,
an objection not going to the method used to secure information. 237 NW 2d at 463. Thus, the
Plaintiff has failed to allege that there is any unlawful intrusion.
And just as the Plaintiff failed to allege private facts in relation to publicity of private
facts, he has failed to allege that the Defendants intruded into his private affairs. Once again, the
Plaintiff has claimed that the Defendants have written about his potential involvement in
SWATting and attempting to frame a person for a crime, as well as getting a person fired. None
of these are private affairs. Therefore, having failed to allege unlawful intrusion or that such
non-intrusion was into private affairs, this Court should dismiss any claim for invasion of
privacy by intrusion into seclusion.

29

VI.
THE PLAINTIFF FAILS TO PROPERLY PLEAD APPROPRIATION OF HIS NAME OR
LIKENESS, BECAUSE HE FAILS TO ALLEGE THE DEFENDANTS HAVE TAKEN
ADVANTAGE OF HIS GOOD NAME, FAILS TO ALLEGE HIS NAME HAS
COMMERCIAL VALUE, FAILS TO ALLEGE ANY HARM PROXIMATELY CAUSED
BY SUCH APPROPRIATION, AND ONLY ALLEGES INCIDENTAL USE OF HIS
NAME OR LIKENESS
The Plaintiffs final new cause of action is the most absurd. After spending 52 pages
alleging that the Defendants have essentially trashed his reputation, rendering him odious,
infamous and/or frightening, Compl. 134, the Plaintiff suddenly decides five pages later that
the same Defendants are trading on his good name.
Under Maryland law, [o]ne who appropriates to his own use or benefit the name or
likeness of another is subject to liability to the other for invasion of his privacy. Lawrence v.
A.S. Abell Co., 299 Md. 697, 702, 475 A.2d 448 (1982).
The Plaintiffs most basic error is that there is no cause of action for appropriation of the
Plaintiffs name unless they are using the Plaintiffs good reputation for their economic benefit:
The value of the plaintiffs name is not appropriated by mere mention of it, or by
reference to it in connection with legitimate mention of his public activities; nor is
the value of his likeness appropriated when it is published for purposes other than
taking advantage of his reputation, prestige, or other value associated with him,
for purposes of publicity.
Id. at 702 (emphasis added). In other words, if Nike sold Air Jordans emblazoned with the
familiar silhouette of retired basketball player Michael Jordan without Mr. Jordans permission,
he would have a cause of action against Nike, because Nike would be taking advantage of his
enduring good reputation as an athlete to sell its athletic shoes. However, that isnt what the
Plaintiff has alleged in this case. In this case, the Plaintiff claimed that the Defendants havent
taken advantage of his good name; he alleges that they ruined his allegedly good name and
allegedly made money in the process of doing it. That simply isnt what the tort is all about.

30

Likewise, Lawrence instructs that a persons name or likeness must have commercial or
other value before an appropriation is actionable. 299 Md. at 706. The Plaintiff has made no
such allegations, and given the way the Plaintiff has destroyed his own reputation, supra pp. 1319, it is hard to see how he could plausibly claim that it had such value.
Further, Lawrence instructs that the use must be more than incidental:
The fact that the defendant is engaged in the business of publication, for example
of a newspaper, out of which he makes or seeks to make a profit, is not enough to
make the incidental publication a commercial use of the name or likeness. Thus a
newspaper, although it is not a philanthropic institution, does not become liable
under the rule stated... to every person whose name or likeness it publishes.
299 Md. at 703. The Plaintiff has not made any proper allegations of non-incidental uses of his
name or likeness. In his non-conclusory allegations, he has alleged that the Defendants used his
name and likeness solely in websites where news is disseminated.
Finally, the Plaintiff has made no allegations as to how he has been damaged by the
alleged use of his name and likeness.
For all of these reasons, the Plaintiff has failed to properly allege invasion of privacy by
misappropriation of his name or likeness, and this count should be dismissed.
VII.
THE PLAINTIFF DOESNT PROPERLY ALLEGE ANY ACTUAL INTERFERENCE
WITH AN EXISTING CONTRACT, OR HIS BUSINESS RELATIONSHIPS
The Plaintiff seems to have mislabeled both count four and five. He has asserted under
count five that certain Defendants have committed interference with business relations, but he
actually alleges that he has some kind of employment agreement with his non-profit and that the
Defendants knew of it. In Maryland, those are properly elements of Tortious Interference with
an Existing Contract. The elements of that tort are:
(1) existence of a contract between plaintiff and a third party; (2) defendants
knowledge of that contract; (3) defendants intentional interference with that
31

contract; (4) breach of that contract by the third party; and (5) resulting damages
to the plaintiff.
Fowler v. Printers II, Inc., 89 Md. App. 448, 467 (1991). Besides the fact that the Plaintiff made
only a conclusory allegation that an employment contract existed or that any Defendant knew
that such a contract existed (one wonders why this Court should assume that any Defendant
would know he is not an at-will employee), he has not made any non-conclusory allegation of
any breach of that contract, and the Plaintiffs own language suggests they did not. See, e.g.,
Compl. 167 (alleging that Defendants intentionally attempted to interfere with his
employment relationship (emphasis added)). Therefore, the Plaintiff has not pled intentional
inference with an existing contract.
Likewise, the fifth count talks about prospective economic advantage, but that is the same
cause of action as tortious interference with business relationships. 32 The elements of this tort in
Maryland are as follows:
(1) intentional and willful acts; (2) calculated to cause damage to the plaintiffs in
their lawful business; (3) done with the unlawful purpose to cause such damage
and loss, without right or justifiable cause on the part of the defendants (which
constitutes malice); and (4) actual damage and loss resulting.
Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A.2d 628, 641 (2005). Once again,
the Plaintiff doesnt make any non-conclusory allegations of interference. He simply claims in a
conclusory fashion he has suffered damage both as an employee of Justice Trough Music [sic]
and as a musician. Compl. 173. In relationship to future business the plaintiff[] must identify
a possible future relationship which is likely to occur, absent the interference, with specificity.
Baron Financial Corp. v. Natanzon, 471 F.Supp.2d 535, 546 (D. Md. 2006). He doesnt even
attempt to do this. Simply put, he makes no specific allegations of how this damage manifested
itself, meriting dismissal of this count.
32

See Bagwell, 106 Md. App. at 504 (1994) (noting that two torts are the same).
32

Nor does he allege any facts that would lead this Court to believe that it was wrongful
acts that proximately caused interference with an existing contract or his business relationships.
As the Spengler court noted, not all interference is actionable:
Tortious or deliberate intent to harm a plaintiffs business relationship is not alone
sufficient to support an intentional interference claim. There must also be proof
that the defendants conduct in interfering with contract or business relations was
accomplished through improper means. Consequently, to recover for tortious
interference with business or contractual relationships, the defendants conduct
must be independently wrongful or unlawful, quite apart from its effect on the
plaintiffs business relationships.
Id. at 641-642. So, for instance, if the reason why he suffered these losses was because of
publicity of truthful information related to his criminal past, that would not support a claim of
tortious interference with business relationships.
For instance, the Plaintiff claims that Defendants to have caused a major institutional
funder of Plaintiffs non-profit employer to cease that funding. Compl. 168. This allegation is
conclusory and refers purely to losses by his corporation and not by the Plaintiff. In fact, the
only partially specific allegation of a loss of funding is in Compl. 126, where he claims that the
State Department canceled a grant to Justice Through Music when it learned that a convicted
terrorist was using that money to host[] activists from Iran, Turkey, Kazakhstan, Egypt, Yemen,
Libya, Saudi Arabia, Tunisia, Bahrain, Jordan and elsewhere. Id. The Plaintiff does not
properly allege that this injury was caused by any wrongful act, 33 and it is less than intuitive that
it would be. The Plaintiff is a convicted serial bomber. One can imagine that publicity of these
33

The Complaint doesnt quote any part of the two articles he blames for costing Justice Through
Music the grant, but what little can be gleaned about their content suggests that they were not
false in the slightest way. The title of the first, Why is the State Department Partnering with
Speedway Bomber Brett Kimberlin[?] refers to the Plaintiff by a term that had previously been
used by the Sixth Circuit, Kimberlin v. White, 7 F. 3d at 528, and the internet address for the
Twitchy piece (not even the title is quoted) appears to suggest it called him a terrorist, which is
perfectly reasonable given that his bombings fit the definition of domestic terrorism under 18
U.S.C. 2331(5). Contrary to what the Plaintiff evidently thinks, it is not defamation to call him
either the Speedway Bomber or a terrorist.
33

true factsthat the Plaintiff is a convicted terrorist and that the State Department is using him to
train activists from Irancould cause the State Department to end the program if only because
of its poor optics. This chain of events would not be tortious interference, and it would involve
harm to his employer and not to him. As this example illustrates, it is important that this Court
demand specificity, so it can have some assurance that the alleged interference was actually
tortious and that any damage was actually suffered by the Plaintiff.
With the Complaint having failed to make any non-conclusory allegation of either
tortious interference with an existing contract, or with business relationships, such claims should
be dismissed.
VIII.
THE PLAINTIFFS CLAIM FOR BATTERY IS BARRED BY COLLATERAL
ESTOPPEL AND THE STATUTE OF LIMITATIONS
The Plaintiffs claim of battery arises from the incident on January 9, 2012. As noted
above, supra, pp. 9-12, any claim that Mr. Walker assaulted the Plaintiff on that day is precluded
by collateral estoppel, twice. The Plaintiff had his day in court on these claims, twice. He lost,
twice. Mr. Walker should not be forced to litigate the issue a third time.
In addition, his claim is untimely. Courts have has regularly held that MD CODE CTS. &
JUD. PROC. 5-105, which states that [a]n action for assault, libel, or slander shall be filed
within one year from the date it accrues applies equally to actions for battery. See e.g. Coby v.
Mobley, 1994 U.S. Dist. LEXIS 5125, *5 (D. Md. 1994) (Ms. Coby had not alleged the
intentional torts of assault and battery, both of which would be barred by Marylands one year
statute of limitations...) and Madison v. Harford Cnty, No. MJG-12-CV-1120, *45 n. 38 (D. Md.
Aug. 2, 2013) ([a]ssault and battery claims are subject to a one year limitation period under
Maryland law. See MD. CODE CTS. & JUD. PROC. 5-105.). The reason for this is that in

34

Maryland law, the terms assault and battery are deeply blended and often confused. For
instance Lamb v. State, 93 Md. App. 422, 428 (1991), describes in great detail how the terms are
treated the same:
By way of informal (or sometimes even formal) shorthand, both the case law and
the statutory law frequently use the simple noun assault to connote a
consummated battery alone and at other times to connote the combination of the
inchoate attempt to beat or to batter followed immediately by the consummation
of that attempt. Thus used, assault is a synonym for battery and is also a
synonym for the combined form assault and battery.
Thus, often assault is shorthand for a number of acts that include what is in other states referred
to as battery. See, e.g., MD. CODE CRIM. LAW 3-201(b) (defining assault as assault, battery,
and assault and battery); Snyder v. State, 210 Md. App. 370, 380-381 (2013) ([c]ommon law
assault, then, is a chameleon concept that no one should attempt to describe too precisely);
Dixon v. State, 133 Md. App. 325, 755 A.2d 560, 570 (2000) ([a]ssault generally requires either
an actual battery, an attempted battery, or an attempt to frighten... as its basic element).
On the face of the Complaint the Plaintiff alleges that the incident involving the alleged
battery occurred on January 9, 2012, Compl. 46-47 (first occurrence), 34 and, therefore, this
litigation falls well outside this statute of limitations. Thus, even if the claim was not precluded
by collateral estoppel, any claim for battery should be dismissed because the statute of limitation
had run out.

Numbering of paragraphs in the Complaint is not entirely sequential. There are two sets of
paragraphs numbered 42-48; the first set appears on pages 12-15, and the second appears on
pages 53-55. This is most likely an artifact of third claim being cut and pasted from another
document.
34

35

IX.
THE PLAINTIFF DOESNT PROPERLY STATE A CLAIM FOR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS BECAUSE HE FAILED TO ALLEGE
OUTRAGEOUS CONDUCT OR A PHYSICAL MANIFESTATION OF DISTRESS
As a preliminary matter, the Plaintiffs claim for Intentional Infliction of Emotional
Distress (IIED) is also barred by collateral estoppel. As noted previously, Kimberlin v. Walker,
et al., also included a claim for intentional infliction of emotional distress. On July 1, 2014, Mr.
Kimberlin lost that claim on summary judgment. This represents a determination on the merits
that Mr. Walker and the other four Defendants did not commit that tort against him.
Furthermore, the grounds of that decision apply to all Defendants in the instant case, not simply
those that the two cases have in common. As this Court will see if it examines the transcript
(Exhibit B), the basis of the summary judgment was the Plaintiffs failure to offer any evidence
of any physical manifestation of emotional distress, and, thus, the summary judgment against
him represents a finding of fact that he has felt no emotional distress in the relevant period. This
should be sufficient to dispose of the issue for all Defendants.
Even if collateral estoppel didnt apply, the Plaintiff has failed to properly plead the tort.
In order to state a claim for IIED, the Plaintiff must allege sufficient facts that, if true, would lead
this Court to believe that the conduct is reckless or intentional, that it is extreme and outrageous,
that it proximately caused the Plaintiffs alleged emotional distress, and that such emotional
distress is severe, proximately causing damage to the Plaintiff. Batson v. Shiflett, 325 Md. 684,
733 (1992). Further, Maryland law requires that the Plaintiff must also demonstrate that his
emotional distress has a physical manifestation. As the Maryland Court of Appeals affirmed,
[a] plaintiff must prove, however, a clearly apparent and substantial physical injury in one of
four ways: (1) an external condition; or (2) symptoms of a resulting pathological; (3)
physiological; or (4) mental state. Exxon Mobil Corp. v. Albright, 433 Md. 303, 71 A.3d 30, 63
36

(2013).

The requirement of such a showing of physical manifestation is a guard against

falsehoods, allowing some objective measure of the persons emotional state.

The instant

Plaintiff has not made any non-conclusory allegation that he has felt any emotional distress and
has made no allegations at all of a physical manifestation of such distress. As a result, his claim
to have suffered Intentional Infliction of Emotional Distress fails.
Additionally, he has failed to allege extreme and outrageous conduct. The Plaintiff only
alleges two actions that could have proximatelylegallycaused the Plaintiff harm and was
carried out by any of the Defendants: defamation/false light in the form of alleged implications
of SWATting and other reprehensible conduct, and the alleged assault. The claim that the
Plaintiff received threats of death and injury cannot be considered because he has not alleged that
any of the Defendants are the legal cause of such threats. 35 Likewise, allegations that Defendants
have called for him to be sent back to prison againwhich are only supported by conclusory
allegationswould not amount to anything more than petitioning the government for a redress
of grievances which is protected by the First Amendment. As noted earlier, any claim that Mr.
Walker assaulted the Plaintiff is barred by collateral estoppel.
Even then, the alleged defamation and alleged assault does not meet the standards for
extreme and outrageous conduct. As the court explained in Harris v. Jones, 281 Md. 560, 571
(1977):
It is only where it is extreme that the liability arises. Complete emotional
tranquility is seldom attainable in this world, and some degree of transient and
trivial emotional distress is a part of the price of living among people. The law
intervenes only where the distress inflicted is so severe that no reasonable man
could be expected to endure it.
Brandenburg v. Ohio, 395 U.S. 444, 395 (1969), establishes the Constitutional standard for
liability for incitement. The Plaintiff has not even alleged the first elementthe advocacy of the
use of force or lawlessnessor properly alleged facts that would support any other theory that
would make the Defendants responsible for the actions of third parties.
35

37

What we have is very ordinary allegations of defamation and assault. And as noted in Harris,
The personality of the individual to whom the misconduct is directed is also a
factor. There is a difference between violent and vile profanity addressed to a
lady, and the same language to a Butte miner and a United States [M]arine.
Id. at 568 (internal quotation marks omitted). Here the alleged conduct is directed at a hardened
criminal, The Speedway Bomber, whose own conduct has caused a man to kill himself. The
idea that he is a delicate flower who cannot stand to see people say bad things about him on the
internet is not supported by anything written in his complaintor by simple logic.
Finally, the Plaintiff doesnt make any non-conclusory allegations establishing proximate
causation of his non-distress. For all of these reasons, this claim should be dismissed.
X.
PLAINTIFFS CLAIM FOR CIVIL CONSPIRACY MUST FAIL BECAUSE IT IS NOT
AN INDEPENDENT TORT AND HE HAS NOT PLED ANY OF THE ELEMENTS OF
CONSPIRACY
First, under Maryland law there is no independent tort of civil conspiracy. Alleco Inc. v.
Harry & Jeanette Weinberg Foundation, Inc., 340 Md. 176, 191 (1994). It is only a method of
aggregating responsibility for torts. As stated in Carr v. Watkins, [t]he act done must be one
which if done by one alone would be unlawful, 227 Md. 578, 588 (1962). Having failed to
properly allege any state law tort, the Plaintiff has likewise failed to allege any conspiracy to
commit any tort.
Second, as noted throughout this memorandum, the Plaintiff has made no effort to
actually allege the elements needed to make out conspiracy. He simply says conspiracy, and
similar terms throughout the Complaint, without alleging facts that would allow this Court to
conclude that such a conspiracy might have existed.

Such conclusory allegations are not

sufficient to attach conspiracy liability, and, therefore, any claim based on conspiracy should be
dismissed.
38

XI.
ALL CLAIMS SHOULD BE DISMISSED BECAUSE THE PLAINTIFF SERIALLY
FAILS TO PROPERLY ALLEGE HE WAS DAMAGED
As noted before, under RCC [t]he well-pleaded facts setting forth the cause of action
must be pleaded with sufficient specificity; bald assertions and conclusory statements by the
pleader will not suffice. 994 A. 2d at 434. Yet repeatedly, when it comes to the Plaintiffs
allegation of damages, that is all he has. Whether it is in Compl. 163 in relation to false light, in
44 and 47 (second occurrence)36 relation to the other claims of invasion of privacy, in 169 and
176 relating to interference with contract or business relations, and in 188 in relation to
intentional infliction of emotional distress, his allegations that he was damaged are strictly pro
forma conclusory allegations and recitations of the damage elements that are not entitled to a
presumption of truth. RRC, 413 Md. 638, 994 A. 2d 430, 434 (2010). Since damages are a
necessary element of each claim, each of these claims should be dismissed with prejudice for this
reason, as well as for the reasons outlined previously.
XII.
DISMISSAL SHOULD BE GRANTED QUICKLY PURSUANT TO
MARYLANDS ANTI-SLAPP LAW
About five years ago, when this dispute had barely started, Plaintiff made his intent to
abuse the courts as a pro-se litigant plain. Mr. Frey had written an article about Plaintiff that was
based primarily on a number of published news articles. The Plaintiff had threatened to sue, and
Mr. Frey graciously offered to change what he wrote if the Plaintiff could prove any inaccuracy.
Instead of specifying any errors, Plaintiff simply issued this threat: I have filed over a hundred
lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time

As noted supra note Error: Reference source not found, the numbering in this complaint is not
entirely sequential. In this case, the paragraphs are found on pages 54-55.
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and money...37 In other words, Plaintiff was threatening to file baseless litigation against Mr.
Frey, believing that even if Mr. Frey won, it would cost him money and time, and he hoped the
threat of such litigation would cow Mr. Frey into silence. Plaintiffs litigiousness was further
verified last August after he lost against in Kimberlin v. Walker, et al.. Immediately after losing
that case, Plaintiff pledged to sue again: [T]omorrow, I can file another lawsuit against them.
And now I know what I need to do. Its going to be endless lawsuits for the rest of their lives. 38
This case is only the latest example of the Plaintiffs vexatious attempt to silence his critics by
endless litigation, and he will do everything he can do drag out this litigation.
Fortunately, Maryland law has a solution to this problem: MD CODE Cts. & Jud. Proc. 5807, also known as Marylands anti-SLAPP39 statute.
First, under the statute, the defendant must demonstrate that a suit is a SLAPP suit. The
statute defines SLAPP suits as follows:
A lawsuit is a SLAPP suit if it is:
(1) Brought in bad faith against a party who has communicated with a
federal, State, or local government body or the public at large to report on,
comment on, rule on, challenge, oppose, or in any other way exercise
rights under the First Amendment of the U.S. Constitution or Article 10,
Article 13, or Article 40 of the Maryland Declaration of Rights regarding
any matter within the authority of a government body or any issue of
public concern;
(2) Materially related to the defendants communication; and

Patrick Frey, Brett Kimberlin Threatens to Sue Me; UPDATED with Second E-Mail from
Kimberlin, PATTERICOS PONTIFICATIONS, October 10, 2010 (available at http://patterico.com/
2010/10/11/brett-kimberlin-threatens-to-sue-me/), visited on April 26, 2015.
38
David Weigel, The Weirdest Story About a Conservative Obsession, a Convicted Bomber, and
Taylor Swift You Have Ever Read, THE DAILY BEAST, August 30, 2014 (available at http://www.
thedailybeast.com/articles/2014/08/30/the-weirdest-story-about-a-conservative-obsession-aconvicted-bomber-and-taylor-swift-you-have-ever-read.html), visited on April 26, 2015.
39
SLAPP stands for Strategic Lawsuits Against Public Participation. 5-807(a).
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(3) Intended to inhibit or inhibits the exercise of rights under the First
Amendment of the U.S. Constitution or Article 10, Article 13, or Article
40 of the Maryland Declaration of Rights.
5-807(b). The present suit meets every element of that definition.
First, its bad faith is demonstrated by the fact that it was brought in spite of the clear
application of res judicata to these claims. Mr. Walker had already informed the Plaintiff that his
claim was barred by the principle of res judicata in a reply to the Plaintiffs opposition to his
motion to dismiss in Kimberlin v. NBC, et al. (I) (ECF No. 241) and the relevant pages are
attached as Exhibit F. Its text, frankly, will look very familiar to this Court. That alone should
be sufficient to demonstrate that the instant suit was brought in bad faith, but if this Court needs
more evidence in a hearing, Mr. Walker is prepared to prove that the Complaint includes several
easily provable lies.
Second, there can be little doubt that it was brought
against a party who has communicated with a federal, State, or local government
body or the public at large to report on, comment on, rule on, challenge, oppose,
or in any other way exercise rights under the First Amendment of the U.S.
Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of
Rights regarding any matter within the authority of a government body or any
issue of public concern
According to the Plaintiffs own allegations, Mr. Walker communicated with the FBI and other
law enforcement agencies about the SWATting that occurred against him, and such criminal
conduct is within their authority.40 Likewise, there can be no reasonable dispute that this is
materially related to those communications as required by 5-807(b)(2), and that this lawsuit is
designed to inhibit the exercise of rights under the First Amendment under 5-807(b)(3). Indeed,
the intent to inhibit free expression is spelled out explicitly in the Plaintiffs prayer for relief
seeking an order enjoining Defendants from engaging in future tortious conduct against
This is true of several Defendants, but Mr. Walker only has to show this in relation to one party,
under 5-807(b)(1).
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Plaintiff. Such an injunction would include a prior restraint on the Defendants expression as he
has sought in both Kimberlin v. Walker, et al., in Kimberlin v. NBC et al. and in two peace order
petitions. Therefore, this suit fits every element of the statutory definition of a SLAPP suit.
Among the remedies provided for the anti-SLAPP statute is that the court shall hold a
hearing on the motion to dismiss as soon as practicable, 5-807(d)(1). 41 Mr. Walker hereby
invokes that provision. He does not want to wait for all of the Defendants to be served, or for
them to file their own inevitable motions to dismiss. Indeed, he asks that this Court even forgo a
hearing and rule on the pleadings as soon as the Plaintiff has had an opportunity to file any
opposition thereto, and after Mr. Walker has had an opportunity to reply to any such opposition.
If there is an opposition, this Court can rule on Mr. Walkers motion in as little as thirty six days
after his motion to dismiss, and he moves this Court to do so at the earliest opportunity and end
this vexatious litigation.
CONCLUSION
As with the four other lawsuits against Mr. Walker in over three years, this fifth lawsuit is
simply meritless. Most basically, it is barred by res judicata. Even if it were not, the Plaintiff has
failed to adequately plead a single cause of action. He is defamation-proof, barring any claims
for either defamation or false light, and, in any case, he has failed to plead false light with
sufficient specificity. He has failed to allege publicity of private facts because they are not
private, and the Plaintiff doesnt allege the supposedly offending statements were factual. He has
failed to allege any unlawful intrusion or that such intrusion was into private matters. He has
failed to allege that the Defendants attempted to take advantage of his good name. He has failed
to alleged tortious interference with an existing contract or business relations, having failed to
Practicable is that which may be done, practiced, or accomplished; that which is performable,
feasible, possible[.] BLACKS LAW DICTIONARY 1172 (6th ed. 1990).
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properly allege that a contract existed or that his contracts or business relations were interfered
with or that any of the alleged interference was tortious.

Finally, he has failed to allege

intentional infliction of emotional distress, having failed to properly allege either outrageous
conduct, actual distress or a physical manifestation of such distress. In other words, the Plaintiff
has not alleged that he has a case.
The Plaintiff almost certainly knows this. The instant case is a classic example of a
SLAPP suit, where the goal isnt really to win, but to wear the Defendants down until they stop
offending him by telling the truth. As Ezra Levant said when discussing with multiple lawsuits
he has faced, designed to silence him: the process is the punishment. 42 This case should be
dismissed immediately, so as to reduce that punishment, and such dismissal should be granted for
all parties. Finally, Mr. Walker requests an opportunity to show that the Plaintiff is a vexatious
litigant so measures can be put in place to prevent the Plaintiff from punishing the Defendants
with more abusive lawsuits.

Tuesday, April 28, 2015

Respectfully submitted,

Aaron J. Walker, Esq.


Va Bar# 48882
[redacted]
Manassas, Virginia 20109
[redacted]
AaronJW72@gmail.com

Joseph Brean, Exceedingly political libel case pits free speech advocate Ezra Levant against
master of lawfare, NATIONAL POST, October 14, 2013 (available at http://news.nationalpost
.com/news/canada/exceedingly-political-libel-case-pits-free-speech-advocate-ezra-levantagainst-master-of-lawfare) visited on April 26, 2015.
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VERIFICATION
I, Aaron Walker, state under penalty of perjury under the laws of the United States of
America , that the foregoing information is true and correct and that all exhibits are true and
correct copies of the originals.
Dated:

__________________________________
__________________________________
(print name of notary public)
NOTARY PUBLIC

My commission expires on:

44