MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

Brett Kimberlin,
Plaintiff
v.

Case No. 403868V

National Bloggers Club, et al.,

Defendants

DEFENDANT WALKERS MOTION TO STRIKE PLAINTIFFS MOTION TO

STRIKE DEFENDANT WALKERS MOTION TO DISMISS (DKT NO. 7) AND
MOTION FOR SANCTIONS AND FURTHER RELIEF TO REMEDY CHRONIC
FAILURE TO PROVIDE SERVICE OF PROCESS
NOW COMES Defendant Aaron J. Walker, Esq. and moves to strike the Plaintiffs
Motion to Strike Defendant Walkers Motion to Dismiss (Dkt. No. 7) and for sanctions and
states the following:
FACTS
1.

According to the Maryland Judiciary Case Search,1 on May 1, 2015, the Plaintiff

filed the aforementioned Motion to Strike Defendant Walkers Motion to Dismiss.

2.

As of this filing, on May 6, 2015, the Plaintiff has not deigned to serve this filing

on Mr. Walker.2 As demonstrated by the attached affidavit (Exhibit A), Mr. Walker regularly
receives bills on time and no one reports any difficulty mailing to him.
3.

As demonstrated by the attached affidavit, Mr. Kimberlin has a long history of

failing to provide service of process to Mr. Walker (and others).

Available at http://casesearch.courts.state.md.us/casesearch/inquiry-index.jsp.
Mr. Walker refers to himself in the third person for stylistic purposes and to de-personalize this
case.
1
2

4.

As demonstrated by the attached filing by Robert Stacy McCain 3 in the related

case of Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059 (2013),4 Mr. McCain
reported (under oath) that the Plaintiff had failed to serve that lawsuits second amended
complaint on him. Moreover, he provided convincing evidence that the Plaintiff had forged
evidence of service of process regarding the first amended complaint.

Additionally, in a

declaration attached to that filing, co-Defendant Hoge stated that this had been a chronic problem
for him as wellservice of process being consistently late or not performed at all.
5.

Further, the same Plaintiff has also engaged in even more severe misconduct in

prior litigation involving Mr. Walker in relation to service. For instance, in Kimberlin v. NBC, et
al. (I), the same Plaintiff failed to name one Defendant as a party (Twitchy, LLC) on the caption
for his first amended complaint and, therefore, didnt get a summons for them. Rather than
properly seeking to amend his complaint, the Plaintiff decided to forge a summons and served it
on Twitchy.
6.

We know he did this because he admitted it, 5 claiming that this act of forgery was

the result of his ignorance as a pro se litigant (despite literally decades of courtroom
experience),6 and a misunderstanding of the process. That is, he took a genuine summons,
Defendant McCains Opposition to Plaintiffs Motion for Default (ECF No. 254), attached as
Exhibit B.
4
There is a complicated history of this case, as it relates to the prior federal case, Kimberlin v.
National Bloggers Club, et al. (I), No. GJH-13-3059 (2013). Mr. Walker lays out that history in
his motion to dismiss (Dkt. No. 6).
5
Verified Response to February 21, 2014 Order to Show Cause Re Twitchy Summons (ECF
No. 102) filed in Kimberlin v. National Bloggers Club, et al. (I), attached as Exhibit C.
6
The Plaintiff is pro se, but is nonetheless an experienced litigator. In Kimberlin v.
KimberlinUnmasked, Case No. RWT-13-2580 (2014), Judge Titus noted that
3

[t]he Plaintiff is no stranger to the processes of this Court. Following his

conviction in the United States District Court for the Southern District of Indiana
for possession of a firearm not registered to him, manufacture of a firearm,
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removed the original addressee from it, and then inserted Twitchys information into it, all
supposedly because he had a misunderstanding.
7.

Any claim that the Plaintiffs forgery was committed out of ignorance was proven

false when the Plaintiff was shown to have altered a certified mail return receipt green card in
Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013). In an April 9, 2014
sanctions hearing, the Plaintiff admitted to this forgery and cited his pro se status as an excuse.
Judge Ryon brushed aside this plea that he was simply an ignorant pro se as follows:
MR. KIMBERLIN:

You know, like I said Im a pro se litigant and --

THE COURT:

Dont even use that with me.

MR. KIMBERLIN:

Okay, okay --

maliciously damaging by explosion the property of an entity receiving federal

financial assistance, and damaging property of a business used in and effecting
interstate commerce, which was affirmed in United States v. Kimberlin, 805 F.2d
210 (1986), he commenced numerous cases in this Court against the United States
Parole Commission, in Brett C. Kimberlin v. Department of Justice and U.S.
Parole Commission, Case No. 8:98-cv-00730-AW; Brett Kimberlin v. United
States Parole Commission, et al., Case No. 8:97-cv-03829-AW; Brett C.
Kimberlin v. United States Parole Commission, Case No. 8:97-cv-02066-AW;
Brett C. Kimberlin v. U.S. Parole Commission, et al., Case No. 8:97-cv-01687AW, and Brett C. Kimberlin v. United States Parole Commission, Case No. 8:97cv-00431-AW, apparently in relation to his efforts to be paroled from his
conviction affirmed by the 7th Circuit in 1986. Following his release on parole, he
also brought an action in this Court which was treated as an effort to overturn his
Indiana conviction under 28 U.S.C. 2255. His petition was denied, and the
denial was affirmed by the 4th Circuit, Brett C. Kimberlin v. Warden, Case No.
8:04-cv-02881-AW. Finally, he has been involved in litigation concerning his
personal bankruptcy in this Court, Brett Coleman Kimberlin v. USA v. In Re: Brett
Coleman Kimberlin v. James Turner, Case No. 8:98-cv-03586-AW and Brett
Kimberlin v. US Trustee, Case No. 8:98-cv-00490-AW. Recently, he brought
another action in this Court against numerous Defendants alleging that they had
been engaged in a RICO conspiracy, a case which remains pending of this date.
Brett Kimberlin v. National Bloggers Club, et al., Case No. 8:13-cv-03059-PWG.
That is only a recounting of his federal litigation in one court.
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THE COURT:

You know its one thing to say Im pro se so I dont understand

rules or I dont understand how to get something in and the rules of
evidence and another thing to alter something and file it

Exhibit D at pp. 21-23. In that hearing, this Court went as far as to say that it wanted to fine the
Plaintiff, but could find no statutory authority to do so.
8.

Even after that, the Plaintiff attempted to file a secret, sealed letter request to file

for a preliminary injunction with the U.S. District Court in Kimberlin v. National Bloggers Club,
et al. (I). He did so engaging in severe procedural irregularities and he refused to serve it on
several Defendants, including Mr. Walker. As noted by Paul Levy7 in opposing this conduct:
Kimberlin has also sent me two letters he has sent to the Court about a desire to
seek preliminary injunctions, one of them against all defendants; he said the latter
was filed under seal. I have called Kimberlins attention to the requirements of
Local Rule 105(11) (see attached email). He apparently does not intend to meet
those requirements; indeed, his response included vulgarity that I prefer not to
place in the public record....
I might add that, so far as I know, Kimberlin has not provided either letter to the
pro se parties, depriving them of any chance to argue about the sealing issue or,
indeed, about the substance. This raises other issues of due process.
Response to Letter Requests from Brett Kimberlin, (ECF No. 166) filed in Kimberlin v.
National Bloggers Club, et al. (I) (attached as Exhibit E). Mr. Levys information was correct,
and, indeed, Mr. Kimberlin never provided proper service to Mr. Walker or any other selfrepresented defendant (upon information and belief). Mr. Walker couldnt even get a copy from
the court in that instance, because it was under seal. He had to obtain a copy from another
lawyer in the case.
9.

In short, the Plaintiff has repeatedly broken the rules when required to provide

service of process in the past, and now that conduct has continued into this case.
Mr. Levy represented co-Defendant the Ace of Spades blog at the time.
represented the Plaintiff on an unrelated matter.
7

He previously

I.
THE PLAINTIFFS FAILURE TO PROVIDE SERVICE OF PROCESS JUSTIFIES A
MOTION TO STRIKE
10.

As noted above, this is not the first time this Plaintiff has failed to provide service

of process. In Kimberlin v. NBC, et al. (I) this same Plaintiff was warned by Judge Grimm 8 to
serve all motions on defendants as follows:
The failure to serve a party is no mere technicality. If there were any ambiguity, Plaintiff
now is made aware... that Fed. R. Civ. P. 5(b)(2) requires physical servicethat is, the
delivery of a filing in hard copy by hand, mail, or other method expressly approved of in
Rule 5unless a party consents to electronic or other service in writing. Proper service is
a prerequisite for filing, and future motions will not be considered in the absence of
proper service.
Letter Order of January 7, 2014, Kimberlin v. Walker, et al (I) (ECF No. 26), attached as Exhibit
E.
11.

The Maryland Rules equally provides that such service is a prerequisite, and the

prejudice to the parties is even greater in this case. In Federal Court, if a party fails to provide
service of process, a person usually can download copies of court papers from PACER for ten
cents a page, in the comfort of ones home or office. No similar option exists in the Maryland
Courts, and, as noted in the attached affidavit (Exhibit A), Mr. Walker called the Clerk of the
Circuit Court and politely asked if it would be possible for this Court to scan a copy of the filing
to Mr. Walker. The Clerks Office responded that they do not have a scanner. So in order to
obtain a copy of the Plaintiffs Motion to Strike, Mr. Walker must drive seventy miles to and
from his home and pay fifty cents per page to get a copy of a filing that should have been served
on him.
12.

Further, this also creates difficulties for the administration of this Court.

Ordinarily, this Court can reasonably rely on the assurances of a party that service has been
8

Judge Grimm was later replaced in this case by Judge Hazel.

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accomplished on the day stated. If a plaintiff files a motion, and the requisite period of time
passes for an opposition without such a filing, this Court can ordinarily feel confident that no
opposition was filed because the party chose not to file one. In turn, the defendant in that
ordinary scenario can be assured that this Court will be able to correctly discern the date on
which an opposition is due. In other words, the smooth operation of this Court depends to a
large degree on both parties acting in good faith and serving all papers on a timely basis.
13.

However, because this Plaintiff cannot be trusted to actually serve a Defendant on

the day that he says service was accomplished (or at all), this creates difficulties for both this
Court and the Defendants. The difficulties it creates for the Defendants are outlined in the
accompanying affidavit (Exhibit A). Meanwhile for the Court, the difficulty is as follows.
Because the Plaintiff cannot be trusted to serve all Defendants, whenever a Defendant misses a
filing deadline, this Court will have difficulty determining whether the failure to file is a
deliberate choice, or the result of the Plaintiffs failure to properly serve that Defendant.
14.

So, while the admonition quoted above was in a separate federal case, this Court

should treat it as a warning to the Plaintiff in all cases and should refuse to even consider the
Plaintiffs motion in the absence of actual service of process. Accordingly, this Court should
strike the Plaintiffs Motion to Strike and return it to him.

II.
THE PLAINTIFFS FAILURE TO PROVIDE SERVICE OF PROCESS JUSTIFIES
SANCTIONS AND OTHER RELIEF DESIGNED TO ENSURE SUCH SERVICE IS
ACCOMPLISHED IN THE FUTURE, AND PROTECTING DEFENDANTS WHEN THE
PLAINTIFF REFUSES TO PROVIDE SERVICE OF PROCESS
15.

This Court has the inherent authority... to regulate the proceedings before it in

furtherance of the goal of efficient disposition of litigation. Station Maint. Solutions, Inc. v.
Two Farms, Inc., 209 Md.App. 464, 60 A.3d 72, 86 (2013). Almost every process in this Court
depends on plaintiffs efficiently and consistently providing actual service of process. Consistent
service of process is necessary to begin a case and is necessary to make a valid finding of
default. Further, every time a motion or opposition is filed, a failure to provide service gums up
that process. The next time the Plaintiff files a motion before this Court and no opposition
appears at the scheduled time, this Court will probably wonder if there is no opposition because
the Defendants didnt oppose it or because the Plaintiff didnt bother to serve them. It is difficult
to imagine how this Court can operate with such uncertainty.
16.

Further, failure to provide service of process impacts due process. As stated in

Powell v. Alabama, the necessity of due notice and an opportunity of being heard is described as
among the immutable principles of justice which inhere in the very idea of free government
which no member of the Union may disregard. 287 U.S. 45, 68 (1932) (internal quotation
marks and citations omitted). Yet this Plaintiff has attempted to deprive Mr. Walker of both
notice and an opportunity to be heard by refusing to serve his motion on him.
17.

Finally, the Plaintiffs filing of an apparently false certificate of service and

refusal to provide service constitutes a fraud on the court. In Thomas v. Nadel, 427 Md. 441,
451, 48 A.3d 276, 282 (Md., 2012) the Maryland Court of Appeals defined a fraud on the court
as a lawyers or partys misconduct so serious that it undermines or is intended to undermine the

integrity of the proceeding. As demonstrated in this motion, the Plaintiffs continual failure to
provide service has had exactly that effect and justifies considerable sanctions.
18.

This Court has a great deal of discretion in determining how to sanction the

Plaintiff for this conduct or otherwise promulgate orders that would address and prevent the
repetition of this conduct in the future. Mr. Walker suggests that the Court consider doing one of
the following:
a.

Require the Plaintiff to obtain an attorney to represent him in this matter.

A large part of the difficulty in dealing with the Plaintiff is the fact he is pro se. He often
disobeys the rules and then pleads that he is an ignorant pro se when called on it, even though in
truth he has extensive experience in court. By forcing the Plaintiff to retain a lawyer, that
attorney could certify in the Plaintiffs stead that service has been accomplished. Mr. Walker is
confident that no Maryland lawyer will engage in similar misconduct.
b.

Order the Clerk of the Circuit Court to handle service going forward. That

is, rather than depending on the Plaintiffs honesty (the Plaintiff is a convicted perjurer) 9 to
ensure that service of process is accomplished, this Court instead could order the Clerk to
perform service, at the Plaintiffs expense. Thus, whenever the Plaintiff files anything with this
Court, the Plaintiff should be required to file a sufficient number of copies of his filing to allow
service on every Defendant who has appeared in this case, as well as self-addressed and stamped
mailing materials to allow the Clerk to mail them. Packages and envelopes should not be sealed
until the Clerks Office is able to inspect and verify the contents. The Clerk would then seal the
materials in the packaging, put it in this Courts ordinary mail outbox, and sign a certificate of

Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 490 n. 6 (D. Md. 1998) (noting the Plaintiffs
conviction for perjury).
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service indicating that this had been done. This has the advantage of taking service entirely out
of the Plaintiffs hands.
c.

Require the Plaintiff to post a service of process bond of at least four

thousand dollars ($4,000.00) that the Defendants can draw from whenever the Plaintiff fails to
provide service of process. This would to create a fund that Defendants can draw from whenever
the Plaintiff fails to provide service. Thus, when the Plaintiff fails to serve a Defendant in the
future, that Defendant can incur whatever costs are necessary in order to obtain the appropriate
documents and obtain reimbursement from this bond upon submission of an affidavit and
appropriate documentation (such as receipts). If this bond seems high, it is actually conservative
when one considers all the attendant circumstances.

First, there are a large number of

Defendants in this case, and most of them do not live within reasonable driving distance of this
courthouse. If the long-distance Defendants are not served, they are likely to be required to hire
outside contractors to obtain copies of filings and forward them to the Defendants. Second, not
only has this Plaintiff filed many lawsuits, but he files many, frivolous motions in his suits. For
instance, as of this writing Kimberlin v. NBC, et al. (I), has racked up 280 entries on PACER, and
that case has barely gotten past the motion to dismiss stage. In consideration of those factors, a
$4,000 bond actually seems conservative. This bond should be replenished monthly until the
case is concluded, and any amount left over in the case would be returned to the Plaintiff (less
any debts the Plaintiff owes to any Defendants at that time). This approach has the virtue of
giving the Plaintiff an incentive to do the right thing going forward.
d.

Order that all deadlines for all Defendants are extended by a week (seven

days). Since it takes up to a week for a new docket item to appear on the Maryland Judiciary
Case Search, it is only logical that if one cannot be certain that the Plaintiff has actually served

anyone, then the Defendants should be given a time to respond commensurate with their only
reliable way of knowing that the Plaintiff has filed a pleading: the Maryland Judiciary Case
Search. This should be considered in addition to and not in lieu of the solutions outlined above.
e.

Dismissal. This is admittedly the harshest solution, but it is also the

simplest. The Plaintiff is coming to this Court, hat in hand, saying, my losses should be
transferred over to the Defendants. Putting aside that the Plaintiff has not even properly pled
damages, it is the Plaintiffs burden at every stage to establish that such losses should fall on the
Defendants. Likewise, in order to obtain equity, the Plaintiff must have clean hands. This Court
can reasonably conclude that if the Plaintiff doesnt care enough to actually serve the parties, he
shouldnt be allowed to go forward. Filing a lawsuit carries with it certain responsibilities on a
plaintiffs part. Among them is the duty to actually serve every document filed on every
Defendant who has appeared in the case, every time. If the Plaintiff doesnt want to shoulder this
burden, perhaps this Court should simply relieve him of all the burdens of a lawsuit by
dismissing the case.

However, to impose the burden of the Plaintiffs misconduct on the

Defendants simply isnt fair, and, as noted above, dismissal has the benefit of simplicity.
Compared to the administrative hassles of setting up a service of process bond or requiring the
Clerk to mail everything, dismissal allows this Court to wash its hands of the entire matter.
f.

Compensation for Mr. Walker. Apart from any of the solutions above, Mr.

Walker asks that this Court sanction Mr. Kimberlin for at least the amount of money he spent
dealing with Mr. Kimberlins failure to provide service. Specifically, Mr. Walker asks for the
following. First, $90.30 to compensate Mr. Walker for the mileage he will have to drive to
obtain a copy of the motion. Second, Mr. Walker seeks copying costs sufficient to cover the

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$0.50 per page cost of copying at the courthouse. 10

Third, Mr. Walker seeks reasonable

compensation for the time he spent preparing and filing this motion. This is in addition to and
not in lieu of any other relief.
19.

Finally, this Court, in its greater experience, might have solutions and sanctions of

its own to offer, but, respectfully, the status quo cannot continue. Mr. Walker cannot be expected
to constantly come to this Courthouse to obtain copies of documents that were supposed to be
served on him in the first place. If the Plaintiff didnt want the cost and hassle of providing
service of process, he shouldnt have filed this frivolous suit.
III.
THIS IS THE LATEST EXAMPLE OF THE PLAINTIFFS BAD FAITH IN THIS CASE,
FURTHER JUSTIFYING INVOCATION OF MARYLANDS ANTI-SLAPP ACT
20.

This point wont be labored, but in Mr. Walkers motion to dismiss (Dkt. No.6),

he pointed out that Maryland has special procedures set up to deal with bad faith lawsuits
designed to suppress speech. See MD CODE Cts. & Jud. Proc. 5-807. Critical to invoking this
statute is Mr. Walkers assertion that this lawsuit is filed in bad faith. The Plaintiffs continual
failure to provide proper service is further evidence of such bad faith and should be considered,
along with any other appropriate evidence, when determining whether to grant Mr. Walkers
Motion to Dismiss.

WHEREFORE Defendant Walker requests:

That Plaintiffs Motion to Strike (Dkt. no. 7) is hereby stricken and returned to the
Plaintiff for failure to provide service; and

This was written without viewing the Motion to Strike, therefore Mr. Walker does not currently
know how many pages the Plaintiffs motion actually is.
10

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Furthermore, Defendant Walker requests that the Court order one or more of the following:

That the Plaintiff be required to retain an attorney representing him in this action;

That the Clerk of the Court be required to handle service of process for the Plaintiff going
forward as outlined supra 18.b;

That the Plaintiff be required to post a $4,000 service of process bond, as outlined
supra 18.c;

That all filing deadlines for all Defendants are extended by a week (7 days);

Dismissal of all Claims with Prejudice; and/or

Appropriate compensation to Mr. Walker for his inconvenience.

Or that this Court grant any other relief as appropriate.

Wednesday, May 06, 2015

Respectfully submitted,

Aaron J. Walker, Esq.

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

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