ECF 274 Redacted

Judge George Hazel6500 Cherrywood LaneGerenbelt, MD 20770

April 1, 2015

Re: Kimberlin v. NBC,GJH 13-3059, Response to Backer/DBS Letter Request

Dear Judge Hazel:

Please take this letter as a response to Defendants Dan Backer and DBCapitolStrategies' request to file a motion for attorney fees and sanctions. The request iswithout merit, contrary to law and is barred by res judicata.

These defendants have repeatedly requested and been denied the same type ofsanctions they are now requesting. They represented Defendant Aaron Walker intwo patently frivolous suits against me, one in this Court before Judge Motz, and theother in the Prince William Virginia County Circuit Court before Judge Potter. In thefederal case, they asked that I be found to be a vexatious litigant and that I be deniedthe right to file any further lawsuits without permission from the federal court Thisdespite the fact that at that time I had only filed one suit in the previous decade andit resulted in a judgment in my favor. What these defendants wanted from thefederal suit was for Judge Motz to find that the state of Maryland courts were notcapable of handling their own affairs because they ruled in my favor. Judge Motzfound that the request was far outside the authority of the federal courts. Seeattached order.

In the state case, Judge Potter found specifically that the case was brought in badfaith and for an "improper purpose." See attached. In that case, with virtually everymotion filed by these defendants, they requested sanctions in the tens of thousandsof dollars simply for me responding to the motions. Judge Potter denied everysingle such request by these defendants.

In the instant case, this Court has found that my 1983 claim against Mr. Frey hasmerit and should proceed. It found that I have made viable state law claims andallowed me to refile those claims in state court which I will do before April 15, 2015.The Court did not find that those claims were without merit or frivolous, or that Iwas vexatious. With regard to the RICO and 1985 claims, the Court simply foundthat I did not plead the necessary elements of the claims.

These Defendants are attemptiing to use a sanctions motion/order to underminethe Court's order allowing me to refile the state law claims in state court They areattempting to deny me my statutory and First Amendment rights to seek redress forwrongdoing. To accept the defendants' argument that the mere filing of mutiplesuits or the dismsisal of some counts is grounds for sanctions would put mostlawyers out of business, including legal advocacy organizations such as the ACLU,Center for Constitutional Rights, Southern Poverty Law Center, Public CitizenLitigation Group, and Judicial Watch.

Case 8:13-cv-03059-GJH Document 274 Filed 04/06/15 of 2

As far as attorney's fees, the defendants are not entitled to them. First, thesedefendants were represented by their own firm. Second, they cannot be consideredprevailing parties since most of the claims against them are going to be heard instate court. Third, I am a pro se litigant who is the victim of the tortious conduct ofthe defendants. Fourth, it was the defendants' own misconduct of filing improperlawsuits against me that led to the legal claims against them. In fact, since I couldnot file for legal fees after prevailing in those two suits, my only recourse forrecovery was in the civil court arena. Fifth, they used those malicious suits to dosomething unprecedented -launch a website and raise tens of thousands of dollarsbased on the false narrative that I swatted conservative bloggers. They pocketedthat money, yet they now want to ask this Court to further pervert justice byimposing tens of thousands more in legal fees against me for seeking justice andredress.

Finally, last week, when I asked these defendants if they were interested inresolving this case prior to me re-filing the state law claims in state court, theyresponded by saying that I would have to pay them $25,000 or they would file forsanctions and fees in excess of $50,000.

For all these reasons, this Court should deny these defendants request to file for feesand sanctions.

Bre K" berlin8100 Beech Tree RdBethesda, MD20817

Case 8:13-cv-03059-GJH Document 274 Filed 04/06/15 of 2

PAR T I A L

V I R GIN I A

T RAN S C RIP T

1

IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

x

AARON J. WALKER,

Plaintiff,

-vs-

BRETT KIMBERLIN,

Defendant.

x

Case No. CL12-631-00

Circuit Courtroom 4Prince William County Courthouse

Manassas, Virginia

Tuesday, December 4, 2012

The above-entitled matter carneon to be heard

before the HONORABLE RICHARD B. POTTER, Judge, in and for

the Circuit Court of Prince William County, in the

Courthouse, Manassas, Virginia, beginning at 11:15 o'clock

a.m.

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Case 8:13-cv-03059-GJH Document 274-1 Filed 04/06/15 Page 1 of 12

APPEARANCES:

On Behalf of the Plaintiff:

DAN BACKER, ESQUIRE

On Behalf of the Defendant:

(Pro Sel

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1 EXT R ACT o F PRO C E E DIN G S

3

2 *

3 *

4 *

5 (The Court Reporter was previously sworn by

6 the Clerk of the Court.)

7 THE COURT: We're back on the record.

8 The Plaintiff has brought a complaint against

9 the Defendant Kimberlin, and two other Defendants who are

10 not before the Court today personally.

11 Their complaint contains thirty-two counts of

12 which fourteen involve the Defendant Kimberlin. Counts

13 two, four, five, eight, nine, fourteen, fifteen, sixteen,

14 twenty-three, twenty-four, twenty-five, twenty-six,

15 twenty-seven, and thirty-two.

16 The Defendant Kimberlin has filed a motion to

17 dismiss the complaint for failure to state a claim, the

18 lack of jurisdiction, improper venue, and violation of th=

19 First Amendment.

20 Kimberlin's motion to dismiss will be granted

21 That is motions for any additional sanctions will be

22 denied.

23 In light of the Court's ruling on the motion

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1 to dismiss, the other pending motions by the Court are

2 moot and therefore dismissed as well.

3 Plaintiff's motion for default judgment

4 against the co-defendants are also denied and the case is

5 dismissed.

6 Upon consideration of the totality of the

7 pleadings including the attached exhibits and the argumen~

8 of the parties and counsel it is clear to this Court that

9 the Plaintiff seeks two million dollars in punitive

10 damages, but makes no claim for compensatory damages so

11 that the Plaintiff (inaudible) is not recognizable under

12 the law.

13 It's also clear from the various pleadings an

14 exhibits filed in this case that the parties have been

15 involved in extensive disputes that have involved

16 political and religious issues.

17 These various claims including criminal and

18 civil allegations and litigations in state and federal

19 courts all of which appear to have been dismissed. The

20 most recent case filed by the Plaintiff against the

21 Defendant Kimberlin and his two organizations was

22 dismissed by order of the U.S. District Court in the

23 District of Maryland on November 28, 2012, just six days

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1 ago, in which the Judge stated and I quote, "I deem it

2 unwise to intervene in the bitter political disputes

3 between the parties."

4 This Court takes the same position. It's

5 clear that this case is simply a continuation of meritles~

6 and vindictive litigation between the parties.

7 While the law in Virginia is clear that

8 failing to state a claim is an issue generally addressed

9 by demurrer, and Defendant Kimberlin has not filed a

10 demurrer in this case.

11 It's also true that Virginia law provides tha

12 the signature of an attorney or a party with any pleading

13 before this Court constitutes a certification by him that

14 the pleading is well grounded in fact, warranted by

15 existing law, and is not interposed for any improper

16 purpose such as to harass or to cause unnecessary delay or

17 needless increase in the cost of litigation.

18 The Court finds that the complaint is not weI

19 grounded in fact, it's not warranted by existing law, and

20 it's imposed for an improper purpose as part of an ongoin.

21 political dispute between the parties.

22 While the statute provides for sanctions by

23 the Court, this Court will grant the motion to dismiss by

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1 Defendant Kimberlin.

2 The Court denies the motion for any further

3 sanctions.

4 The Court further finds that count two is

5 based upon a claim of defamation. Under Virginia law, th~

6 elements on defamation are:

7

8

9

1)

2 )

3)

Publication,

Of an actual statement and,

Intent.

10 In order to assert a claim of defamation

11 however the Plaintiff must first show that the Defendant

12 published a false factual statement that concerns and

13 harms the Plaintiff.

14 But here by the Plaintiff's own allegations

15 including paragraph fifty-one they indicate that the

16 statements allegedly made by the Defendant were not

17 directed at the Plaintiff.

18 In addition, as the Defendant has stated in

19 his motion to dismiss and here today expressions of

20 opinion are constitutionally protected and they're not

21 actual as defamation.

22 So as a matter of law the Court finds that th

23 statements set forth in the complaint do not contain

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1 provable false factual statements but are relative in

2 nature and depend upon the viewpoint of the speaker.

3 Counts four and five are dismissed for lack 0

4 proper jurisdiction and venue.

5 As to count eight, it is based on allegation

6 of intentional infliction of emotional distress. In orde

7 to recover on a claim of intentional infliction of

8 emotional distress the Plaintiff must satisfy four

9 elements of proof:

10 1) That the Defendant's conduct was

11 intentional and reckless and,

12 2) The Defendant's conduct was outrageous an

13 intolerable and,

14 3) There was a causal connection between th

15 wrongdoers conduct and the resulting emotional distress,

16

17 severe.

4 ) The resulting emotional distress was

18 Even taken in the light most favorable to the

19 Plaintiff, the Court cannot find that the alleged

20 statements of the Defendant Kimberlin were outrageous or

21 could be the basis of any severe emotional distress.

22 As to count fourteen, that count is based on

23 the tort of interference with business expectations and

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1 the elements of that tort include:

2 1) A business relationship or expectancy of

3 probability of future economic benefit to Plaintiff as an

4 objective test and,

5 2) Defendant's knowledge of that relationshi

6 or expectancy and,

7 3) Reasonable certainty that absent the

8 Defendant's intentional misconduct Plaintiff would have

9 continued in that relationship and,

10

11 and,

12

4)

5)

The interference was by improper methods

Damages resulted from that improper

13 interference.

14 The complaint fails to state all of the

15 elements. It fails to state sufficient facts that were i1

16 any way improper methods by the Defendant.

17 Counts fifteen and sixteen are dismissed for

18 lack of jurisdiction and venue.

19 Count twenty-three is based on the Virginia

20 business conspiracy. And the elements of that are:

21

22

23

1)

2)

3)

An allegation of two or more persons,

An agreement and,

To willfully and maliciously interfere

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1 with another in his trade, reputation, business, or

2 profession by any means and,

3 4 ) Malice, that is an intentional purpose an

4 without justification.

5 The given complaint fails to state sufficient

6 facts to support the elements of the tort and fails to

7 state those specific facts with reckless and

8 particularity.

9 Count twenty-four is based on the tort of

10 Virginia Common Law of Conspiracy and the elements of the

11 tort include:

12

13

1)

2)

Two or more persons combined to,

Accomplish by some concerted action for

14 some criminal or unlawful purpose, or an unlawful purpose

15 by unlawful and criminal means.

16 If a Plaintiff fails to allege the tort with

17 reckless and particularity.

18 Counts twenty-five, twenty-six, and twenty-

19 seven are dismissed for lack of jurisdiction and venue anj

20 for the reasons set forth herein.

21 Count thirty-two is based upon Plaintiff's

22 request for an injunction, but an injunction requires one

23 irreparable harm and two, a lack of adequate remedy of

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1 law.

2 In view of the fact no compensatory damages

3 are sought, there can be no showing of irreparable harm i~

4 the allegations set forth in the complaint or any showing

5 that the Plaintiff would not have an adequate remedy of

6 law or a claim of merit.

7 Therefore, the Defendant's motion to dismiss

8 counts two, four, five, eight, nine, fourteen, fifteen,

9 sixteen, twenty-three, twenty-four, twenty-five, twenty-

10 six, and twenty-seven, and thirty-two is granted.

11 The motion is granted and those counts are al

12 dismissed with prejudice. The Court shall note the

13 exceptions of the Plaintiff and the Defendant to the

14 ruling of the Court.

15 The other motions are therefore rendered moot

16 and are also dismissed. At the same time the Court will

17 dismiss the motion for default judgment against the co-

18 defendants upon the same grounds as set forth by the

19 Court.

20 I will ask counsel to prepare an order which

21 simply reflects the ruling of the Court which is that the

22 Defendant's motion to dismiss is granted and the case is

23 dismissed.

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2

3

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Thank you, gentlemen.

*

*

*

11

5 END o F EXT RAe T

6 * * * * *

7 (Whereupon, at approximately 11:57 o'clock

8 a.m., the hearing in the above-entitled matter was

9 concluded.)

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*****

CERTIFICATE OF REPORTER

I, SUZANNE GONZALES, a Verbatim Reporter, do

hereby certify that I took the stenographic notes of the

foregoing proceedings which I thereafter reduced to

typewriting; that the foregoing is a true record of said

proceedings; that I am neither counsel for, related to,

nor employed by any of the parties to the action in which

these proceedings were held; and, further, that I am not ~

relative or employee of any attorney or counsel employed

by the parties hereto, nor financially or otherwise

interested in the outcome of the action.

SUZANNE GONZALESVerbatim Reporter

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Case 8:12-cv-01852-JFM Document 33 Filed 11/28/12 Page 1 of 2

Civil No. -JFM-t2,I852t.... -"

•••••

f" ""JIN THE UNITED STATES DISTRICT COURT U.S. O\S1RirJ.~~q~R~\lO

FOR THE DISTRICT OF MARYLAND \l\S1f<\C; Of "f ,\ \...

lUII t{1l12 \\ P \2: \ l\,,'" "r. f 'C;;.

"L\'.f\r, "' •." ~-I... • .p ~. ~ ••.•. , ••

!).1 BAl-~\' v'-::,,:.,"'(

AARON WALKER

v.

BRETT KIMBERLIN••••••

MEMORANDUM

Aaron Walker has brought this action against Brell Kimberlin and two organizations with

which Kimberlin is associated. Kimberlin has filed a motion to dismiss and a motion for Rule II

sanctions against Walker'sallomey. Kimberlin's motion to dismiss will be granted but his

motion for Rule II sanctions will be denied.

The parties apparently have been involved in intense political disputes over the years.

Walker complains that Kimberlin has filed meritless law suits against him. He seeks a

declaration from this courlthat Kimberlin is a vexatious litigant and requiring that he seek

approval from an administrative law judge before he can bring any type of action against Walker.

Obviously, this court has no authority to require a court to appoint an administrative law judge to

approve the filing of any suits filed by Kimberlin or any organization associated with him against

Walker. Although Walker also seeks $150,000 in punitive damages, he makes no claim for

compensatory damages, Thus, the claims he asserts are not cognizable. See Scott v. Jenkins, 690

A.2d 1000, 1008 (Md. 1997); Shabazz v. Bob Evans Farms, Inc., 881 A.2d 1212, 1233-34 (Md.

App.2005).

As to the Rule II motion, I deem it unwise to intervene in the biller political disputes

between the parties. In any event, although plaintiff is cautioned that the institution of any


Case 8:12-cv-01852-JFM Document 33 Filed 11/28/12 Page 2 of 2

similar suit in the future may result in the imposition of sanctions, I have concluded that here the

imposition of Rule I I sanctions would not be appropriate.

Lo 7 a.4~---r- '--J~ erick Mo~United States District Judge


ECF 274 Redacted

Documents

Transcript of ECF 274 Redacted