MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

Brett Kimberlin,
Plaintiff
v.

Case No. 403868V

National Bloggers Club, et al.,

Defendants

DEFENDANT WALKERS OPPOSITION TO THE PLAINTIFFS MOTION TO

COMPEL PRE-ACTION DISCLOSURE REGARDING DEFENDANT ANONYMOUS
BLOGGER ACE OF SPADES AND BLOG ACE OF SPADES (DKT. NO. 31)
NOW COMES Defendant Aaron J. Walker, Esq., and files this Opposition to the Plaintiffs
Motion to Compel Pre-Action Disclosure Regarding Defendant Anonymous Blogger Ace of
Spades and Blog Ace of Spades and states the following:
1.

Mr. Walker believes that he has standing to challenge this Motion because Mr.

Walker has a right to see his part of the case resolved rapidly under MD CODE Cts. & Jud. Proc.
5-807(d)(1) and the instant motion threatens to slow down such resolution. Mr. Walker also
urges that this Court adopt procedures allowing for anonymous objections to disclosure
contained in VA. CODE 8.01-407.1 so that the affected parties can respond for themselves.
2.

On July 17, 2015, this Court held a scheduling hearing at which the Plaintiff did

not show, reportedly proffering the questionable excuse that he assumed Mr. Walkers Motion to
Continue (Dkt. No. 21) had been granted. In fact, it had been denied, and the Plaintiff has been
in enough courtrooms in his life to know that nothing is continued until the judge says it is
continued.

3.

On the same date, the Plaintiff filed a Motion to Compel Pre-Action Disclosure

Directing Intermarkets Inc. to Disclose the Identity and Address of Defendant Anonymous
Blogger Ace of Spades and Blog Ace of Spades (Dkt. No. 31) (hereinafter the Plaintiffs
Motion to Compel).
I.
THE PLAINTIFFS MOTION TO COMPEL SHOULD BE DENIED BECAUSE IT
CONTROVENES THIS COURTS DECISION STAYING DISCOVERY
4.

The Plaintiff apparently filed the instant motion without being aware of this

Courts oral decision to stay discovery on July 17, 2015,1 because he failed to attend that hearing.
If he had attended the hearing, the Plaintiff would not only have known of this Courts decision,
he might have had the opportunity to object or convince this Court to allow the kind of discovery
he seeks in the instant motion. As such, the principle of res judicata alone is sufficient to justify
denial of the Plaintiffs Motion to Compel.
II.
THE PLAINTIFFS MOTION TO COMPEL SHOULD BE DENIED BECAUSE IT IS
PREMATURE
5.

A motion to compel is not typically filed until a subpoena is issued against a

person and there is a failure to fully comply. Accordingly, this request is premature. For all the
Plaintiff knows, Intermarkets will comply with a simple subpoena, making it unnecessary for this
Court to rule on whether it should be compelled to comply. Accordingly, the Plaintiffs Motion
to Compel should be denied.
III
THE PLAINTIFFS MOTION TO COMPEL SHOULD BE DENIED BECAUSE HIS
COMPLAINT HAS NOT YET SURVIVED A MOTION TO DISMISS
6.

The Plaintiff is in essence asking that the blogger known as Ace of Spades be

stripped of his or her First Amendment right to anonymous speech. As the Supreme Court stated
1

Memorialized in this Courts Order of July 22, 2015 (Dkt. No.37).

2

in McIntyre v. Ohio Elections Commn, 514 U.S. 334, 341-42 (1995), the right to anonymous
speech is a valuable one which had been exercised by the Constitutions Founders (see, e.g., THE
FEDERALIST PAPERS):
Anonymous pamphlets, leaflets, brochures and even books have played an
important role in the progress of mankind... Great works of literature have
frequently been produced by authors writing under assumed names. Despite
readers curiosity and the publics interest in identifying the creator of a work of
art, an author generally is free to decide whether or not to disclose his or her true
identity. The decision in favor of anonymity may be motivated by fear of
economic or official retaliation, by concern about social ostracism, or merely by a
desire to preserve as much of ones privacy as possible. Whatever the motivation
may be, at least in the field of literary endeavor, the interest in having anonymous
works enter the marketplace of ideas unquestionably outweighs any public
interest in requiring disclosure as a condition of entry. Accordingly, an authors
decision to remain anonymous, like other decisions concerning omissions or
additions to the content of a publication, is an aspect of the freedom of speech
protected by the First Amendment.
(Internal quotation marks, citation and footnotes omitted).
7.

In Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 966 A.2d 432 (2009) the

Maryland Court of Appeals adopted specific procedures to balance the right to anonymous
speech with the right of plaintiffs to bring meritorious suits for defamation. The Brodie court
held that a plaintiff seeking such discovery must plead a defamation claim against the person to
be identified that is capable of defeating a motion to dismiss for failure to state a claim (id. at
447, holding that the circuit court judge abused his discretion when he denied Independent
Newspapers motion for a protective order, because when he compelled the identification of the
five Does, Brodie had not pleaded a valid defamation claim against any of them). Further, the
Brodie court held that, even if a plaintiff pled a valid claim, that is not sufficient. Rather, such a
Plaintiff must also provide evidence establishing a prima facie case of defamation. Id. at 449,
including evidence supporting each element of the cause of action. Presumably, if the case

involves a different tort than defamation allegedly committed by an anonymous writer on the
Internet, the plaintiff must provide prima facie evidence for that cause of action.
8.

Further, the Brodie court gave the following additional guidance to trial courts:

Thus, when a trial court is confronted with a defamation action in which

anonymous speakers or pseudonyms are involved, it should, (1) require the
plaintiff to undertake efforts to notify the anonymous posters that they are the
subject of a subpoena or application for an order of disclosure, including posting a
message of notification of the identity discovery request on the message board;
(2) withhold action to afford the anonymous posters a reasonable opportunity to
file and serve opposition to the application; (3) require the plaintiff to identify and
set forth the exact statements purportedly made by each anonymous poster,
alleged to constitute actionable speech; (4) determine whether the complaint has
set forth a prima facie defamation per se or per quod action against the
anonymous posters; and (5), if all else is satisfied, balance the anonymous
posters First Amendment right of free speech against the strength of the prima
facie case of defamation presented by the plaintiff and the necessity for disclosure
of the anonymous defendants identity, prior to ordering disclosure.
Id. at 457.
9.

However, the instant Plaintiff cannot clear the first hurdle: pleading a valid claim

against Ace of Spades (the person or the blog). For this reason, this Court should deny the
instant motion, or, alternatively, stay consideration of the matter until after the September 3,
2015, motion to dismiss hearing. Such a course of action would serve the interest of judicial
economy. After all, if this Court decides that all claims against all parties deserve to be
dismissed based on a failure to state a claim, there would be no point in conducting discovery of
any kind.2
The Plaintiffs motion to discovery is also inefficient at this time, because the Plaintiff is
seeking similar discovery in the U.S. District Court for the District of Maryland in Kimberlin v.
National Bloggers Club, et al. (I), No. GJH-13-3059 (D. Md., March 17, 2013) (now rechristened as Kimberlin v. Frey). Mr. Walker has just learned that the U.S. District Court
commanded Intermarkets to divulge the same information in that case. Therefore there is no
need to consider duplicative discovery in this Court. Attached for this Courts convenience is a
Motion to Quash and accompanying memorandum filed by the same Intermarkets, the Plaintiffs
opposition thereto, and Intermarkets Reply, as Exhibits A, B, and C respectively. Mr. Walker
continues to make this objection in this case, because a stay and interlocutory appeal might be
2

A.

The Motion to Compel Should Be Denied Because the Plaintiff Has Failed to State a
Claim Against Ace of Spades as Either a Person or a Blog, and the Suit Should Be
Dismissed for Both
10.

The Plaintiffs Complaint is deficient on its face in relation to all parties, but in

particular as it relates to Ace of Spades. The clearest error the Plaintiff has made is in suing
Ace of Spades, the Blog. He does not allege that this blog is any kind of legal entity, only that
it is a website on the Internet, and that it was registered by Michelle Kerr who is not named as
a defendant. Therefore the Plaintiff has failed to allege any facts that would allow this Court to
conclude that Ace of Spades, the Blog is able to sue or be sued under Maryland law in the first
place. It is like suing a car in relation to an auto accident. It is nonsensical.
11.

In addition to that, Mr. Walker has already catalogued the majority of the legion

of shortcomings in the Complaint in his motion to dismiss and accompanying memorandum

(Dkt. No. 6). The majority of those arguments, although tailored to the allegations regarding Mr.
Walker, apply with equal force to the person or persons who write as Ace of Spaces
(hereinafter Ace). Accordingly, Mr. Walker incorporates those arguments by reference.
B.

The Motion Should Be Denied Because the Plaintiff Has Failed to Establish That
This Court Would Have Personal Jurisdiction Over Ace.
12.

One argument that Mr. Walker did not choose to raise in his motion to dismiss and

accompanying memorandum (Dkt. No. 6) is the issue of personal jurisdiction. It is clear on the
face of the Complaint that the Plaintiff has failed to allege any facts establishing that Ace can be
properly subjected to personal jurisdiction in the state of Maryland. As noted in Taylor v. CSR,
181 Md.App. 363, 956 A.2d 754, 760 (Md.App., 2008) [t]he burden of alleging and proving the
existence of a factual basis for the exercise of personal jurisdiction, once the issue has been
sought in the federal case. Further, some of the language in the opinion suggests that
Intermarkets' [ed: error here, due to late changes. It was supposed to read Intermarkets failure
was technical and they might be able to renew their motion if those technicalities are fixed.
Somehow I deleted that by accident.]
5

raised, is upon the plaintiff and, therefore, [p]laintiffs must establish a prima facie case for
personal jurisdiction to defeat a motion to dismiss. (internal quotation marks and citations
omitted). The Plaintiff has failed to properly allege that jurisdiction exists, let alone provide
prima facie evidence for it.
(1)

The Plaintiff has Failed to Demonstrate that this Court Has Jurisdiction Over Ace
Under Any Provision of Marylands Long Arm Statute.

13.

The only attempt the Plaintiff makes to allege that Maryland has jurisdiction over

this matter is his conclusory allegation that the claims are all Maryland state law torts and the
Defendants directed their conduct at Maryland. However, conclusory statements are not to be
credited. RRC v. BAA, 413 Md. 638, 994 A.2d 430, 434 (2010). Striking out such conclusory
allegations, the Plaintiff has, at most, alleged that Ace wrote about him on the Internet to a
general audience3 while at some unknown location and that such writing harmed him in some
unspecified manner. There is no allegation that Ace lives in Maryland, has contacts with the
state, or has ever set foot in Maryland.
14.

Thus, the Plaintiff has ignored all relevant statutes related to jurisdiction and the

limitation on such statutes under the Due Process Clause of the Fourteenth Amendment. Since
he does not allege that Ace is domiciled in Maryland, he cannot allege personal jurisdiction
under MD. CODE Cts. & Jud. Proc. 6-102(a). Further, he fails to allege any basis of jurisdiction
under 6-103, the Maryland Long Arm Statute.
15.

The Maryland Long-Arm Statute (MD CODE Cts & Jud. Proc. 6-103) sets forth

several conditions that must be met to trigger the statute and provide authority for the State to
exercise jurisdiction over out-of-state residents. The only three subsections that might be
implicated by Plaintiffs allegations are 6-103(b)(1), where it states jurisdiction will lie against a
For instance, on page 4 of the Plaintiffs Motion to Compel, the Plaintiff describes Aces
writing as being on the Internet for the entire world to see.
3

defendant who [t]ransacts any business or performs any character of work or service in the
State; 6-103(b)(3) providing for jurisdiction over a person who [c]auses tortious injury in the
State by an act or omission in the State; and 6-103(b)(4) which allows for jurisdiction over a
one who
[c]auses tortious injury in the State or outside the State by an act of omission
outside the State if he regularly does or solicits business, engages in any other
persistent course of conduct in the State or derives substantial revenue from
goods, services, or manufactured products used or consumed in the state.
Plaintiff has failed to plead the elements of these subsections.
16.

Subsection (b)(3) can confer personal jurisdiction over Ace only if Aces allegedly

tortious acts took place in Maryland. Courts have held that this subsection requires that both
the tortious injury and the tortious act must have occurred in Maryland. Dring v. Sullivan, 423
F.Supp.2d 540, 546 (D. Md. 2006) (collecting cases). The Dring court relied in part on the Court
of Special Appeals decision in Zinz v. Evans and Mitchell Industries, 324 A.2d 140, 22 Md.App.
126 (Md.App., 1974). The Zinz court held that an allegedly defamatory letter sent from Georgia
to Maryland was not sufficient to confer jurisdiction under statutory language virtually identical
to subsection (b)(3). The Zinz court reasoned that while the injury caused by such letters would
be felt in Maryland, the act or omission was committed in Georgia where the letter was written
and sent. If a letter from an out-of-state jurisdiction purposefully sent into Maryland does not
create jurisdiction under subsection (b)(3), then a website written to a general audience certainly
will not suffice.
17.

Meanwhile, the Plaintiff fails to allege in his Complaint that Ace [t]ransacts any

business... in the State under 6-103(b)(1) or regularly does or solicits business, engages in any
other persistent course of conduct in the State or derives substantial revenue from goods, food,
services, or manufactured products used or consumed in the State under 6-103(b)(4).
7

However, in response to this Opposition, the Plaintiff is likely to make the argument that Ace
solicits donations from Marylanders by virtue of the fact that Ace allegedly solicits donations
from everyone in the world, and that Ace might have even received donations from Marylanders.
It is worthwhile to pre-empt that argument.
18.

Such alleged donations are not sufficient to trigger subsection (b)(1) because, like

the rest of subsection (b), it is subject to subsection (a)s condition that [i]f jurisdiction over a
person is based solely upon this section, he may be sued only on a cause of action arising from
any act enumerated in this section. Even if donations are considered transacted business, the
Plaintiff cannot plausibly claim that a person donating to Ace has harmed him by making such a
donation, therefore the cause of action does not arise from such alleged business.
19.

Second, such donations are not sufficient to show that Ace regularly does or

solicits business, engages in any other persistent course of conduct in the State or derives
substantial revenue from goods, food, services, or manufactured products used or consumed in
the State. This language is similar to the requirements considered when a court must decide if it
may exercise general jurisdiction over a defendant under the Fourteenth Amendments Due
Process Clause.
20.

First, Plaintiff makes no allegation at all that Ace derives substantial revenue from

any goods, food, services, or manufactured products. Likewise, it cannot be said that Plaintiff
alleged that Ace regularly does or solicits business in Maryland. Any allegation that Ace solicits
and collects donations from Maryland residents (by being open to donations from the entire
world) is not sufficient. Donations are not normally considered business, and the Plaintiff
cannot show that Ace does so often enough to be shown to have done so regularly. Finally,

there is no allegation at all that Ace engage[d] in any other persistent course of conduct in
Maryland. This isnt surprising, given that the Plaintiff doesnt even know who Ace is.
21.

Accordingly, having failed to plead jurisdiction under Marylands Long Arm

Statute, the Plaintiff has failed to plead an adequate claim against Ace in this Court and the
Plaintiffs motion for discovery should not only be denied, but the case against Ace should be
dismissed for lack of personal jurisdiction.
(2)

The Plaintiff Has Failed to Show Such an Assertion of Jurisdiction Would Be

Consistent with Due Process.

22.

The entirety of the case against Ace is based on Internet writing. In fact, the gist

of the complaint against Ace is that Ace allegedly harmed the Plaintiff by writing on his website,
from wherever Ace happened to be. This is the only activity that Ace is alleged to have done:
place writings on the Internet criticizing the Plaintiffbut addressed to the world at largethat
the Plaintiff doesnt like. Plaintiff makes no attempt in the Complaint to claim that Ace has
conducted business in the state of Maryland, has real estate in Maryland or even that Ace has
ever set foot in Maryland. He simply claims that Ace has published tortiously false information
on the Internet, to the world at large, causing Plaintiff unspecified harm.
23.

Thus, a Maryland state court can only exercise personal jurisdiction if such

writings on the Internet constituted sufficient minimum contacts to justify this exercise of
jurisdiction. However, the Fourth Circuit held that placing information on the Internet is not
sufficient by itself to subject[] that person to personal jurisdiction in each State in which the
information is accessed. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390,
399 (4th Cir. 2003) (citation and internal quotation marks omitted). Therefore, this Court may
exercise personal jurisdiction over a nonresident defendant when she (1) directs activity into the
[forum] State, (2) with the manifest intent of engaging in business or other interactions within the
9

State, and (3) that activity creates, in a person within the State, a potential cause of action
cognizable in the States courts. ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,
714 (4th Cir. 2002). The contacts alleged in this case are not sufficient to meet this test.
24.

For instance, Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002)

presents facts similar to this case in nearly every relevant respect. That case involved two
Connecticut newspapers (and members of their respective staffs) that ran a corresponding
website, which published articles allegedly defamatory of a Virginia prison warden. That plaintiff
attempted to argue that Virginia could exercise jurisdiction over these Connecticut residents as
follows:
the [defendants], knowing that [the plaintiff, the warden of a Virginia prison] was
a Virginia resident, intentionally discussed and defamed him in their [newspaper]
articles, (2) the newspapers posted the articles on their websites, which were
accessible in Virginia, and (3) the primary effects of the defamatory statements on
[the plaintiffs] reputation were felt in Virginia.
Id. at 261-62. However, the Young court found this was insufficient because there was no
evidence of any intent to target a Virginia audience:
As we recognized in ALS Scan, a persons act of placing information on the
Internet is not sufficient by itself to subject[] that person to personal jurisdiction
in each State in which the information is accessed. [293 F.3d] at 712. Otherwise,
a person placing information on the Internet would be subject to personal
jurisdiction in every State, and the traditional due process principles governing a
States jurisdiction over persons outside of its borders would be subverted. Id.
315 F.3d at 263. By the Young standard, there is nothing before this Court allowing it to
determine that the posts at issue were meant specifically for a Maryland audience, compared to a
national or even a global audience. Thus, Aces alleged conduct fails prongs (1) and (2). The
blog where Ace is alleged to have posted is available anywhere in the world, not just Maryland.
That Plaintiff accessed them from Maryland (if he did) is insufficient for personal jurisdiction.
See Carefirst, 334 F.3d at 399.
10

25.

Because the Plaintiff has not identified Ace, the Plaintiff has not pleaded any fact

with respect to the originating location of the alleged tortious posts and comments. Therefore,
the Plaintiff has failed to plead that Maryland can validly exercise jurisdiction over Ace. Thus,
the Motion to Compel should be denied, and Ace should be dismissed from this lawsuit. Further,
in the name of judicial efficiency, this Court should consider dismissing every Defendant but
Messrs. Walker4 and Hoge5 for want of personal jurisdiction.6
(3)

The Plaintiff Has Failed to Properly Allege Conspiracy Commit Any Tort in
Maryland Potentially Allowing Him to Assert Jurisdiction.

26.

The Plaintiff is also likely to assert that Ace is in a conspiracy to commit one of

more torts that were allegedly committed in Maryland. However, as noted in Mr. Walkers
motion to dismiss and accompanying memorandum, the Plaintiff makes no non-conclusory
allegation that any such conspiracy exists, and, given that the Plaintiff doesnt even know Aces
name, one would wonder how he could pretend to know for certain such a conspiracy exists (at
least involving Ace), let alone provide prima facie evidence of it.
27.

It is worth noting that this Plaintiff in particular has a history of stating claims for

certain when in fact he is plainly only guessing about the facts. On May 15, 2015, the Plaintiff

Mr. Walker has waived this objection.

Mr. Hoge is a Maryland resident and, therefore, is obviously subject to Marylands jurisdiction.
However, he has moved to dismiss based on the similar, but not identical, theory of venue.
6
The Defendants who have been served and who file motions to dismiss might or might not wish
to waive their objections based on personal jurisdiction, but for the unserved Defendants, this
might be a particularly important consideration. For instance, Ms. Nagy had a stroke while
waiting for the last case, Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059 (D.
Md., March 17, 2013) to be dismissed, and, upon information and belief, she is presently
incompetent. The Plaintiff has heartlessly sued Ms. Nagys mother, alleging somehow that he
has a viable cause of action based on a single publication (Complaint, 29) that falls well outside
the statute of limitations, imposing hardship of being sued in a far off state on a family that is
already suffering. If he is told that he must go to Ms. Nagys native New Jersey to sue, it is
likely to lessen the burden on her and her family.
4
5

11

filed an Appellants Lead Brief before the Fourth Circuit Court of Appeals in an improper
interlocutory appeal of the partial dismissal of Kimberlin v. National Bloggers Club, et al. (I),
No. GJH-13-3059 (D. Md., March 17, 2013).7 A copy of the first page of that brief is attached as
Exhibit D. It states that one of the questions presented by this appeal is:
II.

Whether the District Court erred in dismissing two counts of the

Complaint under F.R. Cv. P. 12(b)(6) [sic] prior to discovery that would
have provided the evidentiary basis for the counts.

By so writing, the instant Plaintiff admitted that the relevant complaint in that case lacked any
factual basis. Yet that complaint didnt contain any caveats such as upon information and
belief.
28.

The Plaintiff seems to assume that if a lot of people write negative things about

him, they must have all conspired together to do so. Even if the Plaintiff properly alleged he was
placed in a false light by Ace or his/her blog (and he wasnt), there is no proper allegation of
conspiracy or evidence supporting it.

Indeed, in Complaint 102, the Plaintiff writes that

[m]any of the Defendants... believed that Plaintiff was involved in the [SWATtings]. This
negates any claim of conspiracy for an unknown subset of Defendants. After all, one cant
conspire to be negligent. Even if one assumes that the Plaintiff was innocent of all the awful
things the Defendants allegedly claimed he did, there is no reason to believe that Ace knew the
Plaintiff was innocent and conspired with others to lie about him anyway.

The simpler

explanation (in that scenario) was that Ace was lied to by someone else. While that might still
subject Ace to liability for false light (in that hypothetical scenario), it doesnt render Ace a
conspirator.

As noted in Mr. Walkers memorandum accompanying his motion to dismiss (Dkt. No. 6), this
case has a complicated procedural history before arriving at this Court. Mr. Walker outlined that
history in that memorandum, on pages 4-7.
7

12

29.

Therefore, the Plaintiff has failed to properly plead that Ace is subjected to the

personal jurisdiction of this Court under any recognized theory of personal jurisdiction. The
Plaintiff is likely to plead this is unfair, that he might see his case dismissed before he can get
discovery, but that was seen as a boon to freedom of expression under First Amendment in
Sinclair v. TubeSockTedD, 596 F.Supp.2d 128 (D.D.C. 2009). In Sinclair, the plaintiff sought to
identify various anonymous Internet writers who had allegedly defamed him to discover if
jurisdiction existed, and the court refused to engage in that kind of fishing expedition, in order to
protect the right to engage in anonymous speech. Accordingly, in order to defend the right to
engage in anonymous speech, the Motion to Compel should be denied, and the entire case
against Ace should be dismissed.
IV.
THE PLAINTIFFS MOTION TO COMPEL SHOULD BE DENIED BECAUSE THE
PLAINTIFF HAS NOT MADE ANY ATTEMPT TO CONTACT ACE
30.

On page 1 of the motion, the Plaintiff correctly states that Brodie holds that when

ruling on such a motion, the first step is to

(1) require the plaintiff to undertake efforts to notify the anonymous posters that
they are the subject of a subpoena or application for an order of disclosure,
including posting a message of notification of the identity discovery request on
the message board;
966 A.2d at 457. The Plaintiff quotes this passage and claims to have complied with that
requirement, but he has not. The entirety of his unsworn claim to have complied is as follows:
Plaintiff has informed Ace of Spades of this lawsuit in different ways. First,
Plaintiff notified Ron Coleman, the attorney who represented Ace in this case in
federal court before it was transferred to this Court of the suit and asked him to
accept service. Second, Plaintiff informed counsel for Intermarkets that Plaintiff
would be filing this motion.

13

What is noticeably absent from that discussion is any attempt to contact Ace, or his/her blog
directly. The Plaintiff knows Aces email address. As demonstrated in Exhibit E, 8 the Plaintiff
has personally emailed Ace in the past, threatening to get Ace fired from his or her job as he did
Mr. Walker. Further, Aces blog contains a healthy comment section. Thus, the Plaintiff could
have posted appropriate legal notice in the comment section on one of the posts by Ace, and he
could have emailed Ace. He chose to do neither. Instead, what he has alleged, in essence, is that
he contacted third parties. He says he hopes they will inform Ace, but there is no guarantee that
they will do so. Further, the Plaintiff makes absolutely no effort to explain why he hadnt just
sent it to Ace. Even if it would be a useless gesture, it isnt like sending an email or posting on
the Ace of Spades blog is difficult or expensive. Pixels are cheap. Accordingly, the Plaintiffs
Motion to Compel should be denied for failure to notify Ace.
V.
THE PLAINTIFFS MOTION TO COMPEL SHOULD BE DENIED BECAUSE THE
PLAINTIFF HAS NOT SPECIFICALLY IDENTIFIED AND SET FORTH THE EXACT
STATEMENTS MADE BY ACE THAT CONSTITUTE ACTIONABLE SPEECH
31.

The Plaintiff also correctly states that Brodie held that as the third step in

obtaining discovery of the identity of an anonymous writer on the Internet, the court must
require the plaintiff to identify and set forth the exact statements purportedly made by each
anonymous poster, alleged to constitute actionable speech. 966 A.2d at 457. Rather than do
that, however, the Plaintiff presented a mess of out-of-context snippets. Without greater context,
this Court can have no assurance of their actual meaning or even if the statements were about the
Plaintiff. For instance, he claims that Ace has said that the Plaintiff is abusing and corrupting
the justice system. However, for all this Court knows, the actual quote might be some say Mr.
Kimberlin is abusing and corrupting the justice system, but I dont believe that. Mr. Walker has
8

See Exhibit A to Levys Affidavit,

14

personally witnessed the Plaintiff take the words of othersincluding judgescompletely out of
context and then claim they said something radically different from what they actually said. At
times, the Plaintiff has literally claimed Mr. Walker said the direct opposite of what he said.
32.

For instance, attached as Exhibit F is Judge Hazels Letter Order of July 28, 2014.

By way of background, that court had put in place a Case Management Order creating a
preclearance procedure before filing most kinds of motions, and the same Plaintiff claimed that
the Defendants (including Mr. Walker) somehow had violated this order by writing on the
Internet. In his order, Judge Hazel chided the Plaintiff, stating that [n]ot only has Plaintiff
misquoted the language from the [Case Management Order], but Plaintiff has taken this language
out of context. P. 3. Further in footnote 2, Judge Hazel included this admonishment: Given
Plaintiffs checkered past with representations to the Court, Plaintiff is cautioned that when he
makes a representation to the Court, it ought to be accurate, in terms of both content and
context. Given this history, this Court has no reason to trust that the Plaintiff is 1) accurately
quoting what Ace said, and 2) placing it in the appropriate context.
33.

Further, several quoted comments are actually true, as determined by other courts.

For instance, the Plaintiff complains that Ace said that the Plaintiff that he was involved with
terrorism. This Court knows by now that the Plaintiff is a convicted serial bomber who
terrorized an entire town for a week. See Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993)
(describing his crime spree). Meanwhile, such a bombing campaign can be reasonably described
as a one-man crime wave. Finally, while the view that he is a thug, a dangerous man and
nefarious is protected opinion, it is also a perfectly reasonable conclusion given his criminal
past. So even if we assume Ace wrote all of that and the Plaintiff is not taking Ace out of
context, these statements cannot possibly be actionable. Therefore, because the Plaintiff has not

15

properly identified and set forth the exact statements purportedly made by Ace that constitutes
actionable speech, this Court should deny the Plaintiffs Motion to Compel.
VI.
THE PLAINTIFFS MOTION TO COMPEL SHOULD BE DENIED THE PLAINTIFF
HAS FAILED TO MAKE A PRIMA FACIE SHOWING THAT ACES STATEMENTS
ARE ACTIONABLE
34.

The Plaintiff also correctly quotes the fourth step required by Brodie court as

stating that when confronted with a motion to discover the identity of anonymous writers on the
Internet, this Court must determine whether the complaint has set forth a prima facie
defamation per se or per quod action against the anonymous posters. 966 A.2d at 457. Once
again, the Plaintiff fails to carry the burden he has accurately quoted. The problem here is that
this passage cannot be applied as is to the present case because, as far as Ace is concerned, this is
not a defamation case.
35.

The Plaintiff has apparently forgotten that he has not sued Ace for defamation. 9

He has sued Ace for False Light, Interference with Prospective Economic Advantage, Intentional
Infliction of Emotional Distress and the non-tort of conspiracy.10 Logically, this Court should
diverge from the Brodie standard to require the Plaintiff to provide prima face evidence of the
claims he did make. However, because he focused almost exclusively on a cause of action he did
not sue under, the Plaintiff has utterly failed to even address the elements of the causes of action
he alleged against Ace.
This is most likely to be because Marylands statute of limitations for defamation is only for
one year. See MD CODE Cts. & Jud. Proc. 5-108 (An action for assault, libel, or slander shall
be filed within one year from the date it accrues.)
10
Plaintiff also claims on page two that he has sued Ace for defamation, false light, conspiracy,
invasion of privacy, and intentional infliction of emotional distress. If he is attempting to
suggest he is also suing Ace for invasion of privacy by Misappropriation of his Name, Intrusion
into Seclusion, and Unreasonable Publicity for Private Facts, this Court should note that he only
asserts these causes of action against Defendants Walker, Frey, Akbar, Dan Backer and DB
Capital Strategies.
9

16

36.

The Plaintiff also makes a strange argument that Aces statements on the Internet

for the entire world to see (Motion to Compel, p. 4), somehow violated 47 USC 223(C) which
he claims prohibits using a telecommunications device... without disclosing his identity and
with intent to annoy, abuse, threaten, or harass any person who receives the
communications[.] Id. at 2. If he means 47 U.S.C. 223(c), that section fails to relate to what
he is describing. If he instead means 47 U.S.C. 223(a)(1)(C), he is misquoting it. It actually
states in relevant part that [w]hoever... in interstate or foreign communications... makes a
telephone call or utilizes a telecommunications device, whether or not conversation or
communication ensues, without disclosing his identity and with intent to abuse, threaten, or
harass any specific person shall be subject to criminal penalties. There is no mention of the
word annoy.

The Plaintiff further asserts that the term telecommunications device... is

defined as including the Internet under 47 USC section 113(C). Id. There is no such law, nor is
there a 47 U.S.C. 113. There is, however, a 47 U.S.C. 153, which provides definitions
relevant to 223. The term telecommunications device is not defined in that statute, but the
term telecommunications is defined in subsection 50 as the transmission, between or among
points specified by the user, of information of the user's choosing, without change in the form or
content of the information as sent and received. In other words, it requires that one directs a
communication toward a certain point or pointslike in a telephone callas opposed to
broadcasting it to the world at large. Thus, as its U.S. Code title suggests, 223 is about crank
calls and/or obscene calls, not about regulating website content. Further, the Plaintiff never pled
a violation of 223 in his complaint, and he has offered no citation to suggest that there is a
private cause of action under 223 in any case.

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37.

Another fundamental error in the Motion to Compel is that he has presented

absolutely no evidence to this Court. As the Brodie court stated:

we believe that a test requiring notice and opportunity to be heard, coupled with a
showing of a prima facie case and the application of a balancing testsuch as the
standard set forth in Dendrite [Intl, Inc. v. John Doe No. 3, 342 N.J.Super. 134,
775 A.2d 756, 760-61 (App.Div.2001)] most appropriately balances a speakers
constitutional right to anonymous Internet speech with a plaintiffs right to seek
judicial redress from defamatory remarks. In determining that a prima facie
showing of defamation is the appropriate threshold, we are cognizant that setting
too low a threshold would limit free speech on the Internet, while setting too high
a threshold could unjustifiably inhibit a plaintiff with a meritorious defamation
claim from pursuit of that cause of action. The lower good faith basis or
motion to dismiss thresholds, articulated by our sister courts... would inhibit the
use of the Internet as a marketplace of ideas, where boundaries for participation in
public discourse melt away, and anyone with access to a computer can speak to an
audience larger and more diverse than any [of] the Framers could have
imagined. ACLU v. Reno, 31 F.Supp.2d 473, 476 (E.D.Pa.1999).
966 A.2d at 456 (footnotes removed and some internal quotations removed). This language
makes it clear that rather than accept a motion to dismiss standard, or even good faith
standard, the Court of Appeals wanted to see a quantum of evidence before unmasking an
anonymous writer on the internet. This becomes even more clear when the Brodie court quotes
favorably from Dendrite, stating that [t]he plaintiff must adduce competent evidenceand the
evidence plaintiff adduces must address all of the inferences of fact that plaintiff would need to
prove in order to prevail under at least one of the causes of action plaintiff asserts. Id. at 454.
Here, the Plaintiff has provided no evidence, to consider. All he has presented is his unsworn
allegations which cannot be considered as evidence.
38.

Further, even if this Plaintiff had verified this pleading, it is not competent

evidence as required by Brodie above. Under MD CODE Cts. & Jud. Proc. 9-104 [a] person

18

convicted of perjury may not testify.

This Plaintiff has been convicted of perjury, 11 and

therefore he not competent to testify under 9-104.

39.

When 9-104 has been brought up in past litigation, the Plaintiff has made a

number of arguments in opposition to the application of this statute. 12 First, he has claimed that
the words may not are permissive. However, the Maryland Assembly has used the exact same
terminology in other statutes when it was clearly a mandatory negative. For instance, MD CODE
Cts. & Jud. Proc.9-107 states that [a] person may not be compelled to testify in violation of his
privilege against self-incrimination. Will the Plaintiff argue that this Court can compel such
testimony if it chooses? One would think he wouldnt, if only out of self-interest. 13 Likewise,
the section protecting attorney-client privilege (9-108) and priest-penitent privilege (9-111)
use the same words may not. These other statutes are not understood to be permissive, and 9104 should be interpreted the same way.

See, e.g., Kimberlin v. Dewalt, 12 F.Supp.2d 487, 490 n. 6 (D. Md 1998) (Petitioner possessed
two 50-pound boxes of Tovex 200 dynamite while on probation from a 1973 felony conviction
for perjury. Part of the dynamite was used to blast holes in the earth to construct an underground
storage vault, while some of the dynamite was used in petitioner's next offense) and Kimberlin
v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992) ([t]he convictions in question are a juvenile
conviction for selling controlled substances and a subsequent conviction shortly after his 18th
birthday for perjury before the grand jury relative to the involvement of others in the juvenile
drug offense).
12
The Plaintiff has repeatedly and falsely claimed that both Judge Jordan and Judge Johnson
(now retired) refused to apply the rule. In fact, Judge Eric Johnson is the only judge to have
ruled in the Plaintiffs favor on this point to the best of Mr. Walkers knowledge. Jordan didnt
rule one way or the other, while Judge Burrell and Judge Creighton (now retired), ruled he could
not testify, as well as Judge Williams of the Montgomery County District Court, and Judge
Stansfield of the Carroll County Circuit Court. Mr. Walker knows of no other judges who ruled
on this issue one way or the other.
13
This is true even if the Plaintiff is being falsely accused or suspected of crimes as he claims is
occurring in this case. As this Court is well aware, the privilege against self-incrimination isnt
solely a tool of the guilty.
11

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40.

Second the Plaintiff has claimed that it would be unfair and thus unconstitutional

to apply 9-104 to him. But Maryland Courts have been utterly unsympathetic even to criminal
defendants burdened by this statute. This is true even when the criminal defendant is seeking the
testimony of third parties who had been convicted of perjury. In other words, even when a
person is on trial with her freedom in the balance, and it is not the defendants fault that the
testimony had been excluded, the statute has still been applied.
41.

For instance, in State v. Latham, 182 Md.App. 597, 959 A.2d 90 (Md.App., 2008),

a defendant sought to overturn his conviction based on ineffective assistance of counsel and
sought that attorneys testimony to support his claim. However, even though Mr. Lathams
freedom was on the line, and even though he had not himself been convicted of perjury, his
attorneys testimony was excluded under this statute.
42.

The most extreme application of this principle, however, comes only three years

ago in Colkley v. State, 204 Md.App. 593, 42 A.3d 646 (Md.App., 2012). In that case, two men
were charged with attempted murder.

In the first trial, William Courts testified and the

Defendants believed his testimony was helpful to them in terms of raising a reasonable doubt as
to their guilt in the alleged attempted murder. In Fields v. State, 172 Md.App. 496, 916 A.2d 357
(Md.App., 2007) the Court of Special Appeals reversed that conviction and remanded for a new
trial. Between the first trial and the second trial, Mr. Courts was convicted of perjury and
therefore the defendants could not call him as a witness at the second trial. In Colkley, the
defendants argued that the statute excluding of Mr. Courts testimony shouldnt apply because
the state allegedly engaged in selective prosecution of Mr. Courts for the specific purpose of
excluding his testimony in the second trial. If there was any time to limit the application of 9-

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104 because of an as applied challenge to its constitutionality, it was there.

Instead, the court

refused to do so.
43.

The reason why this statute applies even in these extreme circumstances isnt to

punish the perjurer, but to protect the courts from the testimony of a person whose dishonest
conduct was severe enough to motivate prosecutors to go to the trouble to convict him or her of
perjury. As written in Hourie v. State:
A convicted perjurer is incompetent as a witness in Maryland. Md. Cts. & Jud.
Proc. Code Ann. 9-104 (1980). The disqualification as a witness is generally
deemed to serve the collateral purpose of barring evidence thought not to be
entitled to credence. It is not looked upon as an additional penalty imposed upon
the perjurer himself R. Perkins, Criminal Law 454 2d ed. 1969).
53 Md.App. 62, 84 n. 22, 452 A.2d 440 (Md.App., 1982).
44.

Unlike the criminal defendants in Colkley and Latham, the Plaintiff is not a

defendant on trial for his freedom. He does not seek this testimony as a shield to defend himself
against incarceration. Instead, he wishes to use his unreliable word as a sword to pierce Aces
right to anonymous speech. Nor can he claim that he is suffering the consequences of a third
partys misconduct as the criminal defendants in Colkley and Latham did. If the Plaintiff wanted
to preserve his right to testify in Maryland, he shouldnt have perjured himself. Thus, even if
this Court might wonder if the statute might be unconstitutional as applied in a case similar to
Colkley and Latham, it would not be unconstitutional as applied here. Indeed, with the Plaintiff
having been caught recently forging and altering documents, he is the poster boy for this
statute. This Court literally cant trust anything the Plaintiff says.
45.

Therefore, the Plaintiff has failed to establish a prima facie case, because 1) he

has presented no evidence, and 2) his word cannot be considered to be evidence. For this reason
alone, the Plaintiffs Motion to Compel ought to be denied.

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VII.
THE PLAINTIFFS MOTION TO COMPEL SHOULD BE DENIED BECAUSE THE
BALANCE OF INTERESTS FAVORS ACES FREEDOM OF SPEECH
46.

Finally, the Brodie court held that this Court must still balance the anonymous

posters First Amendment right of free speech against the strength of the prima facie case of
defamation presented by the plaintiff and the necessity for disclosure of the anonymous
defendants identity, prior to ordering disclosure. 966 A.2d at 457. In other words, even if
everything else is on the Plaintiffs side, this Court should still decide to protect Aces identity if
it feels the threat to Aces right to free speech outweighs the Plaintiffs rights.
47.

Attached as Exhibit E is the motion of Paul Allen Levy and David Rocah, pro

bono counsel from Public Citizen Litigation Group and the Maryland branch of the ACLU
respectively, as filed in Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059 (D.
Md., March 17, 2013). Mr. Walker hereby incorporates their eloquent arguments on this and any
other point by reference. Mr. Walker also notes that for well over three years, he and his wife has
been a victim of the Plaintiffs harassment that began after Mr. Walkers identity had been
revealed to this same Plaintiff. Mr. Walker has faced four false criminal charges, filed by the
Plaintiff or at his direction. Mr. Walker and his wife have been fired from their jobs because of
the Plaintiff. Mr. Walker has been subjected to false arrest because of the Plaintiff. Mr. Walker
has been subjected to two abusive peace orders and a false bar complaint initiated by the
Plaintiff. None of these things would have happened if the Plaintiff had never learned Mr.
Walkers identity. Mrs. Walker has been stalked in person by the Plaintiff in a courthouse
parking lot; he took photographs of her and caused them to be published on the Internet. To this
day, Mr. Walker checks under his car before turning the ignition, because he knows he has
angered a violent serial bomber who is responsible for the death of at least one man. Whoever

22

Ace is, Mr. Walker admires him or her for being willing to speak up and risk facing the same
kind of abuse at the Plaintiffs hands. However, not every person has such courage, and if this
Court does not protect Aces right to anonymity, thousands of other voices will be silenced by
fear of the Plaintiff. To avoid this chilling effect, therefore, this Court should deny the Plaintiffs
Motion to Compel.
VIII.
THE PLAINTIFFS MOTION TO COMPEL SHOULD BE DENIED BECAUSE THE
PLAINTIFF HAS REFUSED TO SERVE OTHER DEFENDANTS
48.

Finally, once again, we are faced with a situation where this Plaintiff has failed to

serve Mr. Walker with necessary pleadings. Indeed, his certificate of service states explicitly that
he has only served Intermarkets.14 Mr. Walker has raised this issue previously (see Dkt. No. 9),
and hereby renews his request that the Plaintiff face consequences for his continual failure to
provide service of process. This Court has already declared that it would consider sanctions for
the Plaintiffs failure to appear at the July 17, 2015, Scheduling Hearing to compensate
Defendants for their inconvenience. Mr. Walker seeks compensation for his inconvenience as
well and a remedy designed to address the Plaintiffs chronic failure to provide service of
process.15
CONCLUSION
49.

The Plaintiff should not be allowed to compel Intermarkets to disclose the identity

of Ace of Spades, either the blogger or the blog. First, this Court has already stayed discovery,
and the Plaintiff has presented no argument whatsoever to reconsider its ruling. Second, a

This Plaintiff also failed to serve Mr. Walker with his motion for alternate service (Dkt. No.
38).
15
Mr. Walker did eventually get a copy of the Plaintiffs Motion to Compel from Patrick
Ostronic, counsel to William Hoge III. Upon information and belief, the Plaintiff only provided
a copy of the Motion to Compel after Mr. Ostronic chided him for his failure.
14

23

motion to compel is premature when Intermarkets has not refused to comply with any subpoena.
Third, the Plaintiffs Complaint has stated a claim against Ace for which relief can be granted.
Indeed, he has not even alleged that Ace of Spades, the Blog is a legal entity that can sue or be
sued in its own name. Fourth, the Plaintiff has failed to properly allege that this Court can
exercise personal jurisdiction over Ace (the blogger). These two reasons not only justify a denial
of the Plaintiffs Motion to Compel, but it also justifies dismissing Ace from this case for lack of
personal jurisdiction. Further, in the name of judicial economy, this Court should consider
dismissing every Defendant other than Walker and Hoge for lack of personal jurisdiction, and
Mr. Walker renews his claim that every Defendant should be dismissed for failure to state a
claim.
50.

In addition to those failings, there are five more reasons to deny the Motion to

Compel. First, the Plaintiff has failed to actually contact Ace as required to by Brodie. Second,
he has not specifically identified and set forth the statements made by Ace that constitutes
actionable speech. Third, he has not presented sufficient evidence to make out a prima facie case
that Aces speech is actionable; indeed, he seems to have forgotten what he is suing Ace for and
has failed to provide one scintilla of evidence to support any cause of action against Ace. Fourth,
the balance of interests favors Ace. Finally, this Court should deny the motion based on a lack of
service of process. Each of these reasons alone is sufficient to justify denial of the Plaintiffs
Motion to Compel, and Mr. Walker has presented nine of them.

24

WHEREFORE, based on the foregoing, Defendant Walker respectfully requests that this Court
deny the Plaintiffs Motion to Compel, that it dismiss this suit against Ace of Spades, the blog,
Ace of Spades, the blogger, and all other defendants, either for lack of personal jurisdiction or
for failure to state a claim. Further, Mr. Walker requests that this Court sanction the Plaintiff for
failure to provide service (again).

Monday, July 27, 2015

Respectfully submitted,

Aaron J. Walker, Esq.

Va Bar# 48882
[redacted]
Manassas, Virginia 20108
AaronJW72@gmail.com
[redacted]
(no fax)

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