MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

RENEWED REQUEST FOR AN ORDER OF DEFAULT

NOW COMES the Plaintiff, Aaron J. Walker, Esq., and files this Request for an Order of
Default pursuant to Maryland Rule 2-613(b). He states the following:
I.
THE DEFENDANTS REMAIN IN DEFAULT BECAUSE THEY HAVE FAILED TO
FILE AN APPROPRIATE ANSWER BEFORE THIS COURTS DEADLINE
1.

At a motions hearing on Thursday, May 5, 2016, the Court held that Brett and

Tetyana Kimberlin (hereinafter the Defendants) were in default but, as a matter of equity,
stayed entry of default judgment until the close of business on Friday, May 13, 2016 (Dkt. No.
129). This Court stated that if they answered the Fourth Amended Complaint by that time, that
the order granting default judgment would not be entered.
2.

On Friday, May 6, 2016, the Defendants filed a Defendants Answer to Plaintiff

Walkers Frivolous and Malicious Complaint. (Dkt. No. 132).

3.

The entirety of the body of the answer reads as follows:

Defendants Brett and Tetyana Kimberlin hereby answer sexual predator, serial
stalker and Plaintiff Aaron Walkers frivolous and malicious complaint by
denying the allegations set forth in the complaint. Defendants [sic] defenses are

(1) immunity, (2) truth, (3) no prosecution, (4) no termination in favor of Plaintiff,
(3) [sic] probably [sic] cause, and (5) lack of malice.
Apart from the sanctionable inclusion of immaterial, impertinent, and scandalous matter in that
paragraph,1 the typos and the quickness of the reply speak to the Defendants carelessness. In
their haste, the Defendants have thus far failed to file an appropriate answer, and there is no
reason to believe they will file an appropriate answer before this Courts deadline.
4.

Instead, the Defendants have filed an inappropriate general denial.

Under

Maryland Rule 2-323(d), a general denial is only allowed under the following conditions:
(d) General Denials in Specified Causes. When the action in any count is for
breach of contract, debt, or tort and the claim for relief is for money only, a party
may answer that count by a general denial of liability.
By the plain text of this rule, there are two conditions which must be satisfied before a defendant
can properly answer by a general denial of liability: 1) the relevant count must be for breach of
contract, debt, or tort, and 2) the claim must be for money alone.

The first condition is

unquestionably met: the only claims remaining in this case are two instances of malicious
prosecution, which is a tort. However, the second condition has unquestionably not been met:
the relief sought is both for monetary and equitable relief. Therefore, a general denial is
inappropriate in this case. The Defendants were supposed to give specific denials paragraph-byparagraph under Maryland Rule 2-323(c).

The Plaintiff would be seeking to sanction and strike this filing, in whole or in part, in order to
excise the immaterial, impertinent, and scandalous matter and in order to punish the Defendants
for submitting it to this Court but for this Courts request to stop filing such motions. In
Alvarado Morales v. Digital Equipment Corp., 669 F.Supp. 1173, 1187 (D.P.R. 1987), the U.S.
District Court for the District of Puerto Rico stated that [t]he federal courts do not provide a
forum for mudslinging, name calling and privileged defamation. The Plaintiff hopes that this
Court will take steps to ensure that it equally doesnt allow itself to become a forum for
scurrilous and fact-free privileged defamation on the Plaintiff.
2

5.

Maryland Rule 2-613(b) states in relevant part that: If the time for pleading has

expired and a defendant has failed to plead as provided by these rules, the court, on written
request of the plaintiff, shall enter an order of default (emphasis added).

Although the

Defendants have filed a document purporting to be an answerwhich is approximately 33%

insultthey have failed to file one as provided by these rules by filing an improper answer.
6.

Therefore, every condition has been met to enable this Court to find that the

Defendants remain in default. The time for pleading expired, at latest, on April 5, 2016,2 and
they have squandered the stay that this Court granted. If there is a need for a new written request
from the Plaintiff, this document satisfies this requirement. Finally, as required by 2-613(b), the
Plaintiff states that the last known address of the Defendants is 8100 Beech Tree Road, Bethesda,
Maryland 20817.3 Accordingly, every condition for the grant of default has been met, and the
Plaintiff wishes this Court to grant it if the Defendants do not file a proper answer by close of
business on Friday, May 13, 2016.
7.

The remainder of this motion assumes that the Defendants will miss that deadline.
II.
EQUITY DOES NOT JUSTIFY FURTHER RELIEF FROM DEFAULT

8.

As a preliminary matter, ordinarily Rule 2-613(b) provides for an automatic order

of default whenever a defendant has failed to file a proper answer on time. Then the onus is on
the defaulted defendant to convince the court to vacate the default under Rule 2-613(d), in a

If one calculates by the date that this Court entered its written order partially denying the
Defendants motion to dismiss.
3
The Plaintiff believes that the Affidavit in Compliance with the Servicemembers Civil Relief
Act continues to be adequate to satisfy 50 U.S.C. App. 521. He states here that he is aware of
no fact that changes his conclusion that he is not 100% certain whether the Defendants are in the
military but considers it highly unlikely that either of the Defendants are in the military.
3

partially equitable inquiry under subsection (e). Then, if relief from default is not obtained,
default judgment is entered under subsection (f).
9.

This Court, however, chose to alter this approach in this instance, most likely out

of concern for judicial efficiency. Rather than enter default, then wait for the Defendants to
present equitable reasons to be relieved of default, this Court chose to consider the equitable
considerations before default was granted. Whichever way the Court chooses to proceed, equity
is an importantlikely determinativeconsideration, and the Plaintiff wishes to address that
subject briefly.
A.

This Court Should Deny Further Equitable Relief to the Defendants because of their
Sanctionable Conduct.
10.

It is fundamental that one who seeks equity must do equity. The Defendants

insistence on ratcheting up the insulting languagecalling the Plaintiff a sexual predator and
serial stalker without any evidentiary supportwould justify a refusal to grant equity. They
have even gratuitously inserted the baseless predator insult in the certificate of service for their
Motion for New Trial Date (Dkt. No. 133). A decision to grant equity given the way the
Defendants have lashed out in the docket might give the impression that such misconduct is
being rewarded.
B.

Mr. Kimberlins Conduct is Particularly Egregious and Particularly Difficult to

Excuse.
11.

Further, there is good reason to consider the issue of equity separately. While the

Plaintiff does not believe that either Defendants conduct is excusable, one can make a rational
distinction between Mr. Kimberlins conduct and Mrs. Kimberlins.

12.

As an initial matter, unlike Mrs. Kimberlin, Mr. Kimberlin is an extremely

experienced litigator and has been both plaintiff and defendant in numerous actions.4 Indeed,
Mr. Kimberlin has recently declared that it was his job as director of Justice Through Music to
file lawsuits in his personal capacity. Specifically, Mr. Kimberlin has recently filed a new suit in
the U.S. District Court for the District of Maryland, entitled Kimberlin v. McConnell, et al., Case
No. 8:16-cv-01211-GJH (D. Md. 2016). The gravamen of the lawsuit is that as a frequent flier
in our court system, Mr. Kimberlin might someday personally seek review before the United
States Supreme Court, and that the Republican senators refusal to consider the nomination of
Merrick Garland to that court somehow violates his legal rights. In the first paragraph of his
complaint, Mr. Kimberlin writes
Plaintiff Brett Kimberlin is a resident of Bethesda, Maryland, and the Director of
a Maryland based non-profit called Justice Through Music, which works to
promote tolerance, pluralism and progressive values. Plaintiffs work includes
seeking redress in federal court for violations of his civil and statutory rights.
Complaint (ECF # 1) 1 (a true and correct copy of this complaint is attached as Exhibit A).
Putting aside that this is an extremely dubious use of charitable funds, this shows that Mr.
Kimberlin isnt just some pro se dragged into court, who is frightened and confused by our
modern civil procedure. Mr. Kimberlin considers his work in court to be part of his day job, his
profession.5 He has literally proclaimed that he is a professional litigant. Such a person can be
presumed to have more information than an ordinary pro se.

In Kimberlin v. KimberlinUnmasked, Case No. RWT-13-2580 (D. Md., Feb. 28, 2014) Judge
Titus listed nine different cases that Mr. Kimberlin had filed in one court and found that he could
be expected to follow that courts procedures. Since then, Mr. Kimberlin has filed two more
cases in that courthouse and several more with this Court.
5
Nor should his pro-se status excuse his misconduct. There is no case law that the Plaintiff
knows of in Maryland establishing a general rule of leniency toward pro-se parties. Further,
while there is some leniency on the federal level, it only goes so far. For instance, the Supreme
Court has stated that we have never suggested that procedural rules in ordinary civil litigation
5

13.

Further, unlike Mrs. Kimberlin, there can be no question that Mr. Kimberlin is

aware of a defendants duty to file a timely and appropriate answer and that if any defendant fails
to meet that duty, he or she risks default. Mr. Kimberlin has spoken in this Court often of the
judgment he obtained against Seth Allen, but he neglects to mention that it was a default
judgment. See Kimberlin v. Allen, Case No. 339254V (Md. Mont. Co. Cir. Ct. 2010) (Dkt. Nos.
63, 66 and 95). So Mr. Kimberlin is aware of the rule and its consequences. One cannot say the
same thing about Mrs. Kimberlin.
14.

Further, the exchange that this Court had with Mrs. Kimberlin at the May 5, 2016,

hearing made clear what the Plaintiff long suspected: Mrs. Kimberlin is only providing minimal
participation in this suit. Indeed, it is reasonable to suspect that she doesnt see most of the
documents flying back and forth, except to sign them as necessary and that she signs them
without reading or understanding them. At times, Mr. Kimberlin has seemed to forget that Mrs.
Kimberlin is in the suit at all.6 One might also wonder whether she is fully aware of all the
mistakes he has made in this litigation. Whether such neglect is ultimately excusable is a
should be interpreted so as to excuse mistakes by those who proceed without counsel. Neil v.
U.S., 508 U.S. 106, 113 (1993). Indeed, the Neil court stated that experience teaches that strict
adherence to the procedural requirements specified by the legislature is the best guarantee of
evenhanded administration of the law. Id. Further, such leniency is not typically granted to an
experienced pro se litigator. See, e.g., Holsey v. Bass, 519 F.Supp. 395, 406 n.27 (D. Md. 1981)
(The experienced pro se litigator should be held to a higher standard than the novice.); Raitport
v. Chemical Bank, 74 F.R.D. 128, 133 (S.D. N.Y.1977) (This is not a case involving an
uneducated, naive plaintiff who may have inartistically stated a valid cause of action.... Mr.
Raitport has spent more time in court than many lawyers.); Sanders v. Vargas, Case No. 11-C405 (E.D. Wis., June 15, 2012) (the plaintiff's pro se status does not, by itself, excuse his
obligation to play by the rules and abide by deadlines... because the court cannot ignore the fact
that the plaintiff is an experienced pro se litigator). Like the plaintiff in Raitport, Mr. Kimberlin
comes before this Court wearing the cloak of a pro se[,] 74 F.R.D. at 133, but, in fact, has
spent more time in court than Mr. Walker or many of the other lawyers he has faced off with
over the years.
6
For instance, when Mr. Walker sought to hold both Defendants in contempt for the misconduct,
Mr. Kimberlin filed two oppositions, but Mrs. Kimberlin filed no such opposition. (Dkt. Nos.
86-87).
6

debatable proposition, but it provides a reason to treat Mr. Kimberlin differently from Mrs.
Kimberlin.
15.

Finally, upon information and belief, Mr. Kimberlin is a native speaker of

English. By contrast, upon information and belief, Mrs. Kimberlin is a native speaker of Russian
from Ukraine who didnt finish high school because Mr. Kimberlin transported her to Maryland
when she was fifteen and didnt arrange for her to attend high school or to obtain any formal
education after that. This is not said to denigrate her. When the Plaintiff represented Mrs.
Kimberlin, he observed that she is a generally eloquent speaker on most topics, and, given her
background, he was impressed at her skill in the English language. However, law is often a
difficult topic for native English speakers, and, therefore, her background presents an additional
reason to treat Mrs. Kimberlin differently from Mr. Kimberlin if this Court is so inclined.
16.

The Plaintiff is not saying her neglect is excusable. At the very least, she should

have obtained independent counsel rather than let her husband play lawyer for her, and she
should have refused to sign documents containing some of Mr. Kimberlins more outrageous
misrepresentations.

However, if this Court was inclined to excuse her neglect and grant

additional leeway to Mrs. Kimberlin, it doesnt follow that Mr. Kimberlins neglect ought to be
excused as well. This Court can default Mr. Kimberlin and not Mrs. Kimberlin.
C.

The Defendants Conduct has Prejudiced the Plaintiff by Putting Discovery on

Hold.
17.

Further, the Defendants conduct prejudices the Plaintiff by stymying discovery.

It is axiomatic in legal practice that the answer is the first stage of discovery. Under modern
pleading doctrine, the answer serves [in part] to determine which allegations in a complaint a
defendant intends to contest at trial[.] JACK FRIEDENTHAL,

ET AL., CIVIL PROCEDURE

284 (2d

Ed. 1993). It allows a plaintiff to determine what he or she will have to prove at trial and,
therefore, what matters on which a party might seek discovery.
18.

First, by refusing to answer the complaint for nearly two months, and, then, by

providing only a general denial, the Defendants have made discovery nearly unmanageable. It
cannot truly be the case that the Defendants are denying every single fact in the Fourth Amended
Complaint including their names and the simple fact that they did in fact file charges against the
Plaintiffwhether those charges were true or not. The Defendants have admitted as much in
oral argument as well as other claims the Plaintiff has made. How much more would the
Defendants admit to, if they were required to admit or deny the allegations paragraph-byparagraph as the rules require?
19.

To give an example, Mr. Kimberlin claimed in his July 30, 2013, charges against

Mr. Walker that

My wife has a long history of mental illness and Mr. Walker is taking advantage
of and exploiting that mental illness to stalk and harass me through her using a
course of conduct and a pattern of criminal activity.
When Tetyana Kimberlin was the Plaintiffs client, she very specifically disputed any claim that
she had any mental illness. She further stated that Mr. Kimberlin coerced her to submit to a
mental health evaluation for approximately a week at Suburban Hosptial, and at the end of the
week, she left with a clean bill of mental health. Further, while the Plaintiff is not a trained
psychologist, he saw absolutely no sign of mental illness when he interacted with her, often over
hours at a time. Accordingly, the Plaintiff has asserted that this allegation that Mrs. Kimberlin
was mentally ill is false in the Fourth Amended Complaint. Are the Defendants going to admit
that Mr. Kimberlin made a false allegation of mental illness against Mrs. Kimberlin? Or are they
going do deny that this statement was false and say, in essence, that Mrs. Kimberlin is mentally

ill? If they state she is mentally ill, then the Plaintiff will need to seek discovery on that question
such as subpoenaing the records from Suburban Hosptial. If they state that she is not, then no
discovery is necessary.
20.

For another example, Mrs. Kimberlin has claimed that her eldest daughter

(K.K.) has felt serious emotional distress as a result of Mr. Walkers writings. Mr. Walker
has seen K.K. testify to her level of distress, and, therefore, in his Fourth Amended Complaint
the Plaintiff disputes the claim that any distress she felt was serious. Are they going to deny
the allegation that K.K. did not feel serious emotional distressin essence to claim that she
really was feeling such distress? If so, the Plaintiff will need to take discovery on that question.
On the other hand, if they admit that they had falsely claimed that their daughter felt such
distress, then no such discovery is necessary.
21.

Nor is this the first time that one of these Defendants have thwarted discovery. In

Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013), when Mr. Kimberlin
was the plaintiff, his refusal to cooperate with discovery was so severe that he was sanctioned
$600, payable to Mr. Patrick Ostronic (the instant Plaintiffs attorney at the time). See Dkt. No.
215. This suggests that rather than being an innocent mistake, the failure to answer properly is
part of a deliberate plan to obstruct the discovery process,7 and it presents an additional example
of why this Court might determine that Mrs. Kimberlins conduct is easier to excuse than Mr.
Kimberlins.
22.

Therefore, the balance of equitieswhenever this Court chooses to balance

themclearly favors an entry of default judgment. The Defendants have enjoyed the benefits of
equity but have not done equity, filling the docket with insults rather than appropriate legal
7

As noted previously, the Defendants have also filed a Motion for New Trial Date that also
appears to be designed to skip discovery.
9

filings. Mr. Kimberlin in particular is an experienced litigatorhe says it is part of his job
who has obtained a default judgment in the past, while it is increasingly clear that Mrs.
Kimberlin is not the driving force in their joint defense. Meanwhile, the Plaintiff has been
prejudiced by the Defendants misconduct because he has not been able to conduct discovery,
not knowing what issues remained in contention. For all of these reasons, it is no longer
equitable to allow this case to go on. The Defendants are plainly uninterested in conducting a
proper defense, and, therefore, a default judgment should ultimately be entered in this case.
CONCLUSION
23.

This Court has bent over backwards to accommodate the Defendants, even

voicing concern that it should not be that accommodating as it did so. Rather than show
gratitude, the Defendants rhetorically spat in this Courts eye, filing an answer that was blatantly
improper in form, haphazardly drafted, and sanctionably insulting in tone. They have further
prejudiced the Plaintiffs ability to carry on this case. Defendants who behave like this do not
deserve this Courts equity. This Court gave them a second chance, and they squandered it.
Therefore, whether equity is considered on the front end or the back end, the Defendants have
already been given a second chance: they do not deserve a third. This Court should hold that the
Defendants remain in default, and, ultimately, enter a default judgment.

WHEREFORE, based on the foregoing, this Court should enter an order of default as to liability
against both Defendants, followed by a default judgment and provide any other relief that is just
and equitable.

10

Friday, May 13, 2016

Respectfully submitted,

Aaron J. Walker, Esq.

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

VERIFICATION
I, Aaron Walker, solemnly affirm under the penalties of perjury that the contents of the
foregoing paper are true to the best of my knowledge, information, and belief and that the exhibit
is a true and correct copy of the original.

Dated:

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

11

MARYLAND:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

ORDER GRANTING THE PLAINTIFFS RENEWED REQUEST FOR ORDER OF

DEFAULT
Upon consideration of the Renewed Request for Order of Default (Dkt. No.

), and

any opposition thereto, it is this _________ day of __________________, 2016, hereby

ORDERED that the Defendants, Brett and Tetyana Kimberlin, are hereby in default; and
it is further
ORDERED that notice shall be issued to those Defendants in compliance with Maryland
Rule 2-613.

Hon. Michael D. Mason

Judge, Circuit Court of Maryland for Montgomery County