HMARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST

DEFENDANT BRETT KIMBERLIN
NOW COMES the Plaintiff, Aaron J. Walker, Esq., and files this Motion for Partial
Summary Judgment Against Defendant Brett Kimberlin. He states the following:
1.

This motion for partial summary judgment seeks to determine two facts

conclusively. First, that Mr. Kimberlin did commit malicious prosecution against Mr. Walker
with respect to the Application for Statement of Charges he filed on July 30, 2013, attached as
Exhibit 1 (hereinafter the Application). Second, that Mr. Kimberlin did engage in stalking
directed toward Mr. Walkers wife, Mary Bravo. The third issue in relation to Mr. Kimberlin
whether Mr. Kimberlin is vicariously liable for malicious prosecution in relation to the
Application for Statement of Charges Mrs. Kimberlin filed on May 18, 2015is not yet ripe for
summary judgment because the Defendants have not properly answered discovery at this point in
time. However, this Court can rule for partial summary judgment on the issue of malicious
prosecution in relation to the July 30, 2013, Application Mr. Kimberlin filed as well as the way
he terrorized Mrs. Bravo. Mr. Walker moves for such motion now.

I.
MR. KIMBERLIN IS BARRED FROM INTRODUCING ANY EVIDENCE ON HIS
OWN BEHALF
2.

In two prior motions (Dkt. Nos. 189 and 191), Mr. Walker stated that the

Defendants hadnt served any response to Mr. Walkers requests for admissions, interrogatories,
and requests for the production of documents. The facts have changed. On Wednesday, July 27,
2016four days after discovery was duethe Defendants provided some discovery, although
they still did not fully comply with the relevant Maryland Rules. Mr. Walker will seek leave to
file a supplement to his motion to compel (Dkt. No. 189) reflecting those new facts, and seeking
appropriate remedy for the Defendants late, improper responses.
3.

Despite being late and improper in many respects, the Defendants answers to Mr.

Walkers interrogatories settle one question: the Defendants have no evidence to support their
claims. Attached as Exhibit 2 is a true and correct copy of the Interrogatories propounded to Mr.
Kimberlin. Exhibit 3 is the Defendants improper joint answers to those interrogatories (making
no effort to separate which Defendant was answering which question). Their answers are
improper but sufficient for three specific interrogatories propounded by Mr. Walker:
2.
Identify each person, other than a person intended to be called as
an expert witness at trial, having discoverable information that tends to support a
position that you have taken or intend to take in this action, and state the subject
matter of the information possessed by that person.
3.
Identify each person whom you expect to call as an expert witness
at trial, state the subject matter on which the expert is expected to testify, state the
substance of the findings and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion, and, with respect to an expert
whose findings and opinions were acquired in anticipation of litigation or for trial,
summarize the qualifications of the expert, state the terms of the expert's
compensation, and attach to your answers any available list of publications
written by the expert and any written report made by the expert concerning the
expert's findings and opinions.
4.

If you intend to rely upon any documents, electronically stored

2

information, or tangible things to support a position that you have taken or intend
to take in the action, provide a brief description, by category and location, of all
such documents, electronically stored information, and tangible things, and
identify all persons having possession, custody, or control of them.
The Defendants joint answer to each of these standard interrogatories is the same: none,
none, and none. See Exhibit 3. In short, Mr. Kimberlin has admitted in these three answers
that he has no evidence whatsoever to support any position he has taken or intends to take in this
case.

He cites no ordinary witnesses (including the Defendants), no expert witnesses, no

documents, electronically stored information, or tangible things.1

4.

Further, MD CODE Cts. & Jud. Proc. 9-104 continues to be in effect for the near

future,2 preventing Mr. Kimberlin from testifying.

5.

Accordingly, the only evidence that this Court can consider is that which Mr.

Walker presents in his affidavit and the affidavits of Mrs. Mary Bravo and Mr. William Hoge III.
See Exhibits 4, 5 and 6, respectively. Those affidavits are sufficient to establish that there is no
genuine dispute of material fact that Mr. Kimberlin committed malicious prosecution against Mr.
Walker and that on March 1, 2013, Mr. Kimberlin stalked Mr. Walkers wife.
II.
THERE IS NO GENUINE DISPUTE OF MATERIAL FACT THAT MR. KIMBERLIN
COMMITTED MALICIOUS PROSECUTION, JUSTIFYING SUMMARY JUDGMENT
6.

There is no doubt that Mr. Walker can show that the first two elements of the

Later in response to interrogatory 25 (to both Defendants), the Defendants are asked to identify
each witness they intend to call, but given that they have stated in response to interrogatory two
and three that they have no witnesses to support any position they have taken or intend to take,
those witnesses listed in response to interrogatory 25 cannot be seen as a list of witnesses that
will support their position on any issue.
2
See Exhibit III to Plaintiffs Opposition to the Defendants Latest Motion for Sanctions and
Plaintiffs Motion for Leave to File a Motion for Sanctions Against the Defendants for
Presenting Fabricated Evidence to this Court (Dkt. Nos. 193 and 194) (showing that the law
repealing 9-104 doesnt take effect until October 1, 2016).
3

cause of actionthat a prosecution was initiated against Mr. Walker by Mr. Kimberlin, and that
it was terminated in Mr. Walkers favorare present. See Montgomery Ward v. Wilson, 339
Md. 701, 714 (1994). Indeed, the Defendants have admitted as much. Therefore, the only
question is whether there was probable cause to support Mr. Kimberlins Application.
7.

The lack of probable cause is established by examining the Application (Exhibit

1), eliminating every undisputed lie, irrelevancy, and misleading half-truth in the Application (in
which Mr. Kimberlin either withheld information that a reasonable person would realize might
affect the decision to prosecute or gave inaccurate or incomplete information to the decisionmaker) and then determining whether the remaining allegations would support probable cause.
8.

First, there is no material dispute of fact that the Application contains the

following falsehoods:
a.

That prior to July 31, 2013, Mr. Walker had stalked or harassed Mr.

b.

That prior to July 31, 2013, Mr. Walker was aware of any mental illness

Kimberlin.

on Mrs. Kimberlins part.

c.

That prior to July 31, 2013, Mr. Walker had said, written, or done

anything calculated to exacerbate or take advantage of any alleged mental illness on Mrs.
Kimberlins part, or a reasonable person could interpret as having that intent.
d.

That prior to July 31, 2013, Mr. Walker had suborned perjury, or that prior

to that date, Mr. Walker said, wrote, or did anything that a reasonable person would interpret as
manifesting the intent to do so.
e.

That prior to July 31, 2013, Mr. Walker had knowingly prepared a false

document for Mrs. Kimberlin to sign, or that prior to that date, Mr. Walker said, wrote, or did

anything that a reasonable person would interpret as manifesting the intent to do so.
f.

That prior to July 31, 2013, Mr. Walker had stalked Mrs. Kimberlin.

g.

That prior to July 31, 2013, Mr. Walker had followed Mr. Kimberlin in

court or to a court hearing.

h.

That prior to July 31, 2013, Mr. Walker had filed close to a dozen

frivolous lawsuits, criminal charges, and peace orders.

i.

That prior to July 31, 2013, Mr. Walker had made false statements

accusing Mr. Kimberlin of SWATting, perjury, pedophilia,3 statutory rape, and harassment; that

Collateral estoppel prevents Mr. Kimberlin from asserting that Mr. Walker falsely accused Mr.
Kimberlin of pedophilia. Attached as Exhibit 7 is a true and correct copy of the Court of Special
Appeals opinion in Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013),
affd Md. Ct. of Spec. App., Sept. Term 2014 Nos. 1553 and 2099, Sept. Term 2015 No. 365
(Md. App. 2016) cert. den. Md. Ct. of App., Pet. Dkt. No. 93 (2016). In that case, Mr. Kimberlin
was required to prove that Mr. Walker falsely accused him of being a pedophile and Mr.
Kimberlin failed to prove this. 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). Every single element is met on the question. The
question of whether Mr. Walker falsely accused Mr. Kimberlin of being a pedophile was decided
in the prior matter in Mr. Walkers favor, meeting the first element: Mr. Walker did not falsely
accuse Mr. Kimberlin of being a pedophile. There was a final judgment on the merits, meeting
the second element. The Defendant Brett Kimberlin in the instant case was the same person as
the plaintiff Brett Kimberlin in Kimberlin v. Walker, et al., meeting the third prong of that test.
Finally, there is no question that Mr. Kimberlin was given a fair opportunity to be heard on the
issue. He was even given the opportunity to testify even though state law prohibited testimony
5

prior to July 31, 2013, Mr. Walker made false statements accusing Mr. Kimberlin of any
criminal conduct; that prior to July 31, 2013, Mr. Walker made false statements at all; that prior
to July 31, 2013, Mr. Walker was obsessed with making such statements or that anything Mr.
Walker said, wrote, or did would indicate to a reasonable person that Mr. Walker was obsessed.
j.

That prior to July 31, 2013, Mr. Walker offered Mrs. Kimberlin anything

of value to induce her to make or sign false statements, or prior to that date, Mr. Walker said,
wrote or did anything that a reasonable person could interpret as having that intent.
k.

That prior to July 31, 2013, Mr. Walker had written any legal documents

with the intent to harass Mr. Kimberlin, or that Mr. Walker wrote anything that a reasonable
person could interpret as having that intent.
l.

That prior to July 31, 2013, Mr. Walker was the publisher of

KimberlinUnmasked.
m.

That prior to July 31, 2013, Mr. Walker had engaged in a pattern of

criminal activity, either by himself or through Mrs. Kimberlin, or prior to that date, Mr. Walker
said, wrote, or did anything that a reasonable person could interpret as having the intent to
engage in criminal activity.
n.

That prior to July 31, 2013, Mr. Kimberlin told Mr. Walker to leave his

family alone.

from convicted perjurers such as him. Accordingly, the issue is settled and the doctrine of
collateral estoppel bars any further litigation on the question: Mr. Walker did accuse Mr.
Kimberlin of being a pedophile, and that allegation is not false.
Likewise, Mr. Kimberlin is equally collaterally estopped from claiming that he has not
committed perjury. Kimberlin v. Dewalt, 12 F. Supp. 2d 487 490, n. 6 (D. Md. 1998). Indeed,
the Court of Special Appeals opinion in Kimberlin v. Walker, et. al., leaves no doubt that Mr.
Kimberlin is a convicted perjurer, too.
6

o.

That prior to July 31, 2013, Mr. Walker said, wrote, or did anything

calculated to cause Mrs. Kimberlin to harm herself or anyone else, or prior to that date, Mr.
Walker said, wrote, or did anything that a reasonable person could interpret as having that intent.
9.

Those are the outright falsehoods contained in the Application. Further, any

allegation relating solely to the conduct of Mr. Hoge should be ignored because all of the
evidence before this Court shows that Mr. Walker should not be held vicariously liable for
anything Mr. Hoge had done. This is not to imply that Mr. Hoges conduct was criminal, only
that all of the allegations solely against him are irrelevant.
10.

In addition, Mr. Kimberlin made the following claims where he either withheld

information that a reasonable person would realize might affect the decision to prosecute or gave
incomplete information to the decision-maker:
a.

That prior to July 31, 2013, Mr. Walker met with and advised Mrs.

Kimberlin. What Mr. Kimberlin unreasonably withheld from the Commissioner is the fact that
Mr. Kimberlin was separated from him, that Mr. Kimberlin had filed protective orders against
Mrs. Kimbelrin, and that Mr. Walker was an attorney. Those three facts would have provided an
innocent explanation for why Mr. Walker was meeting with and advising Mrs. Kimberlinin
relation to an attorney-client relationship that the Defendants can no longer deny existed.
b.

That prior to July 31, 2013, Mr. Walker did not leave Mr. Kimberlins

family alone. In relation to every member of the Kimberlin family except Mrs. Kimberlin, this is
simply a false statement. Mr. Walker left them alone. In relation to Mrs. Kimberlin, the
deception is the same as with the previous item, supra 10.a.: Mr. Kimberlin did not disclose
facts that would have led the Commissioner to believe that Mr. Walker was doing nothing more
than innocently providing legal advice to Mrs. Kimberlin.

c.

That prior to July 31, 2013, Mr. Walker said, wrote, or did anything

calculated to encourage Mrs. Kimberlin to take any action that would endanger her health. The
only evidence before this Court establishes that Mr. Walker only encouraged Mrs. Kimberlin to
do one dangerous thing: stand up to Mr. Kimberlin. If that is what Mr. Kimberlin meant when
he wrote that Mr. Walker was pushing Mrs. Kimberlin toward actions that could result in death
or serious bodily injury[,] Application, p. 2, then his statement is misleading because he didnt
disclose that he was the source of danger. If he meant that she faced danger from any other
source, this statement is simply a falsehood.
11.

With all of these misleading statementsas well as those which are false or

irrelevantremoved from consideration, Mr. Walker believes can be no dispute of material fact
that there was a lack of probable cause to support the Application. To make this determination,
Mr. Walker urges the Court to go through the Application and eliminate every allegation where
there is no genuine dispute that it is false, misleading, or irrelevant. Then, focusing solely on the
allegations that remain, this Court should determine if there was probable cause based on those
alleged facts.
12.

Indeed, Mr. Walker has helped this Court with the task. Attached as Exhibit 8 is a

copy of the same application that was attached as Exhibit 1, with the falsehoods, irrelevancies,
and half-truths outlined above blocked out. Mr. Walker believes that this Court can use this
version of the Application as a tool to evaluate whether a genuine dispute exists as to the
existence of probable cause. When one eliminates every allegation in the Application where
there is no dispute that the allegation is false, misleading, or irrelevant, one is left with only the
following facts:
a.

Mr. Walker had filed two ordinary suits, one peace order, and two

Applications for Statements of Charges against Mr. Kimberlin, prior to July 31, 2013without
establishing that they were frivolous.
b.

Mr. Walker publishes a blog which regularly published criticism of Mr.

Kimberlin and negative reporting concerning Mr. Kimberlin, prior to July 31, 2013without
establishing that Mr. Walker published anything false about Mr. Kimberlin.
13.

Thats it. Those are the allegations in Mr. Kimberlins Application that are

truthful, relevant, and not misleading. Thus, these two facts are it, and they come nowhere near
showing that there is probable cause to believe that Mr. Walker had violated MD CODE Crim. L.
3-803.
14.

Further, if this Court agrees that there is a lack of probable cause, then malice can

be inferredas has been the law of this case. Likewise, Mr. Kimberlin cannot offer any
evidence to dispute Mr. Walker on the subject of compensatory damages or the need for an
injunction.
15.

Finally, on the issue of punitive damages, if this Court doesnt believe it can infer

the malice required to support punitive damages, actual malice can be shown fairly easily.
Indeed, if this Court agrees with Mr. Walker that there is no genuine dispute of material fact as to
probable cause, this Court will have found that Mr. Kimberlin has repeatedly lied to and misled
the Commissioner in order to institute false charges against Mr. Walker.

Such conduct

constitutes clear and convincing evidence of actual malicethat is, that he had an evil motive
influenced by hate with a purpose to deliberately and willfully injure Mr. Walker. That not only
meets the malice standard for malicious prosecution, it also meets the requirement of malice for
punitive damages.
16.

High punitive damages are appropriate in order to deter Mr. Kimberlin from

engaging in similar conduct, and such damages should be in proportion to the wrongfulness of
his conduct. His plain intent was to use the power of the state to punish Mr. Walker for engaging
in expression protected by the U.S. Constitution and the Maryland Declaration of Rights. While
those legal charters only protect one from government action, the natural right of free expression
is greater than that. When Theo Van Gogh, for instance, is murdered for his criticism of what he
perceives as Islamic culture,4 Medgar Evers is murdered for advocating for equal rights for
persons of every color,5 or abolitionist Elijah Lovejoy is murdered defending his presses from a
pro-slavery mob,6 that might be private violence, but these acts of violence still abridge the
natural right of freedom of speech. How many people hold their tongues when terrorists murder
those who say the wrong thing?7 Likewise, how many people will refrain from engaging in
lawful criticism of Brett Kimberlin if they know that he will file a false criminal complaint
against them in revenge? How many will say, I dont need the hassle, nor do I want to have to
explain this to future employers?
17.

Our Declaration of Independence says that we have certain unalienable rights and

See, e.g., Rachel Donaldio, Provocateurs Death Haunts the Dutch, NY TIMES, October 30,
2014, available at http://www.nytimes.com/2014/11/02/arts/provocateurs-death-haunts-thedutch-.html?_r=0.
5
See, e.g., NAACP History: Medgar Evers, NAACP, available at http://www.naacp.org/pages/
naacp-history-medgar-evers.
6
See, e.g. Fawn Brodie, THADDEUS STEVENS: SCOURGE OF THE SOUTH 68 (1959).
7
See, e.g., Associated Press, Gay Pride revelers seek to offset fear after Orlando massacre, THE
TIMES-PICAYUNE, June 18, 2016, available at http://www.nola.com/crime/index.ssf/2016/06/
gay_pride_revelers_seek_to_off.html (describing a smaller-than-usual turnout at a gay pride
parade in Rhode Island after the terrorist attack in a gay nightclub on June 12, 2016, and quoting
a man as stating that he believed the low turnout was in part because of fear of terrorism) and
Dave Itzkoff, South Park Episode Altered after Muslim Groups Warning, NY TIMES, April
22, 2010, available at http://www.nytimes.com/2010/04/23/arts/television/23park.html
(discussing how the creators of the TV show South Park created an episode depicting
Mohammed, and how the network that airs South Park, Comedy Central, censored that episode
in the face of terroristic threats).
10

[t]hat to secure these Rights, Governments are instituted among Men.

In other words,

government doesnt exist for its own benefit, but rather it has a positive duty to actively protect
the rights of the people. It is not enough, then, for Maryland to simply avoid violating Mr.
Walkers right to freedom of expression by its own actions. It must go further and protect Mr.
Walkers right to freedom of expression from those private actors who would commit crimes and
torts against him to punish Mr. Walker for what he wrote and frighten others into silence. The
way this state protects Mr. Walker from such private, wrongful conduct aimed at silencing Brett
Kimberlins critics is by rigorously enforcing the law against such conduct. It is a travesty that it
took over three decades for Medgar Evers freedom of speech to be vindicated with the
conviction of Bryon De La Beckwith. Mr. Walker hopes for a similar vindication before this
Courtand on a much faster timetableincluding an injunction designed to prevent similar
misconduct in the future and high punitive damages to punish Mr. Kimberlin for her misconduct
and to deter others from engaging in similar misconduct.
18.

Furthermore, it is equally plain that Mr. Kimberlins intent was to punish Mr.

Walker for representing an opponent in a legal matter: namely, Mrs. Kimberlin. This represents
an attack one of the major protections for human freedom: the right to legal counsel.8
19.

Therefore, with no genuine dispute that a prosecution was instituted by Mr.

Kimberlin, with no genuine dispute that it was resolved in Mr. Walkers favor, with no genuine
dispute that there was no probable cause, with no dispute that there was malice, with no dispute
that compensatory damages are justified, with no dispute that punitive damages are justified, and
with no dispute that an injunction is justified, Mr. Walker respectfully asks this Court to grant
8

Mr. Walker is not claiming that civil litigants have a right to a free attorney as defendants do in
a criminal case, only that they have a right to an attorney if they can convince that attorney to
represent them, either by paying her fees or by convincing the attorney to waive her fees.
11

this motion for summary judgment against Mr. Kimberlin on the subject of malicious
prosecution.
III.
THERE IS NO GENUINE DISPUTE THAT MR. KIMBERLIN STALKED
MR. WALKERS WIFE
20.

To tackle this subject briefly, attached as Exhibit 5 is the affidavit of Mary Bravo,

Mr. Walkers wife. Along with the affidavits of Mr. Walker and Mr. Hoge (Exhibits 4 and 6),
the only evidence before this Court establishes that on March 1, 2013, when Mr. Walker was
seeking a peace order against Mr. Kimberlins associate William Schmalfeldt, Mr. Kimberlin
repeatedly approached Mrs. Bravo while she waited in the car, with the intent of making her
reasonably fear assault, serious bodily injury, if not death. Therefore there is no dispute of
material fact in relation to Mr. Walkers entitlement to an injunction designed prevent to any
further attempts to intimidate Mr. Walker or his family.

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

12

Tuesday, August 9, 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 any copies
of any documents are true and correct copies of their originals.

Dated:

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

13

MARYLAND:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

ORDER GRANTING THE PLAINITIFFS MOTION FOR PARTIAL SUMMARY

JUDGMENT AGAINST DEFENDANT BRETT KIMBERLIN
Upon consideration of the Plaintiffs Motion for Partial Summary Judgment Against
Brett Kimberlin and Request for a Hearing (Dkt. No.

), any opposition thereto, it is this

_________ day of __________________, 2016, hereby

ORDERED that the Plaintiffs motion to for partial summary judgment is hereby
GRANTED against Defendant Brett Kimberlin; and it is further
ORDERED that Defendant Brett Kimberlin shall pay compensatory damages to the
Plaintiff equaling $100,000.00 and punitive damages of $1,000,000.00; and it is further
ORDERED that Defendant Brett Kimberlin is prohibited from making any knowingly
false statement in any Application for Statement of Charges or in any other legal document; and
it is further
ORDERED that Defendant Brett Kimberlin is prohibited from making any statement
where he withholds material information or gives incomplete information in connection with any
Application for Statement of Charges or in any other legal document; and it is further

ORDERED that Defendant Brett Kimberlin is prohibited from accusing Mr. Walker of
any crime without disclosing that he is a journalist and an attorney; and it is further
ORDERED that Defendant Brett Kimberlin is prohibited from making any factual
allegation in a legal document without having admissible evidence proving it to be true; and it is
further
ORDERED that Defendant Brett Kimberlin is prohibited from making any allegation in a
legal document that Mr. Walker wrote something without producing a true, correct and unaltered
copy of the original; and it is further
ORDERED that Defendant Brett Kimberlin is prohibited from claiming in an Application
for Statement of Charges or any other legal document that Mr. Walker assaulted Brett Kimberlin
on January 9, 2012; and it is further
ORDERED that Defendant Brettt Kimberlin is prohibited from filing any Application for
Statement of Charges without first obtaining preclearance from this Court, certifying that it is
supported by admissible evidence; and it is further
ORDERED that Defendant Brett Kimberlin is prohibited from engaging in any activity
that a reasonable person would know would intimidate Mr. Walker, his wife, or any member of
their respective families.

Hon. Michael D. Mason

Judge, Circuit Court of Maryland for Montgomery County

15