MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

BRETT KIMBERLIN,
Plaintiff
v.

Case No. 403868V

NATIONAL BLOGGERS CLUB, ET AL.,

Defendants

VERIFIED MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE BASIS OF RES

JUDICATA AND COLLATERAL ESTOPPEL, AND REQUEST FOR A HEARING
NOW COMES Defendant Aaron J. Walker, Esq., and files this Motion for Partial Summary
Judgment and states the following:
INTRODUCTION
As this Court is aware, the instant Plaintiff has filed a substantially identical suit before,
christened Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059 (D. Md. 2013).1 In
the Second Amended Complaint in that case, the Plaintiff sued a slightly larger group of
Defendants for alleged violations of the Racketeer Influenced and Corrupt Organizations Act
(RICO) 18 U.S.C. 1961, et seq., the Civil Rights Act (42 U.S.C. 1983)2 and the Ku Klux
Klan Act (42 U.S.C. 1985), as well as the following state torts: defamation, false light,
interference with business relations, interference with prospective economic advantage, battery,

A copy of the second amended complaintthe final complaint filed in that caseas
downloaded from PACER is attached as Exhibit A.
2
This claim was asserted solely against Defendant Frey and that claim is still pending.
1

intentional infliction of emotional distress, and state-law conspiracy.3 In an opinion issued on

March 17, 2015, Judge Hazel dismissed all but one of those claims. Specifically, the court
allowed the claims under 1983 to go forward against Patrick Frey only, and dismissed the
remaining counts based on federal law for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
Meanwhile, in relation to the state law claims, the court found that there was no diversity of
citizenship in that case and declined to exercise supplemental jurisdiction. A copy of that
opinion, as obtained from PACER is attached to this motion for this Courts convenience as
Exhibit B.
For the most part, Judge Hazel chose not to comment or even hint at his opinion
regarding the underlying merits of the state law claims. However, he did specifically call into
question whether the instant Plaintiff should re-file those claims as follows
Thus, the Court will decline to exercise supplemental jurisdiction over
Kimberlins state law claims and will dismiss those counts (Counts IV, V, VI, VII,
VIII, IX, X) without prejudice to Kimberlins right to re-file in state court, should
he so choose, and should those claims not be barred under principles of res
judicata and/or collateral estoppel.
Exhibit B, p. 35 (emphasis added). While this cannot be considered a ruling that any claim is
barred by res judicata or collateral estoppel, it was a clear warning to the Plaintiff to look closely
at that issue and to determine if any of his claims were barred. That warning has not been
heeded: the Plaintiff has filed a Complaint and First Amended Complaint (Dkt. No. 91) (FAC)
in this case almost completely barred by res judicata and eviscerated by the principles of
collateral estoppel.

Each of these described causes of action are exactly as written by the Plaintiff, with mistakes
included.
3

A Motion for Summary Judgment is appropriate at this early stage because the facts
necessary to resolve them are contained in public records. 4 Indeed, the majority of these facts
can be determined simply by perusing the files of this Court: when were certain lawsuits filed,
when were they terminated, and who were the parties to them. Other relevant facts can be
determined by submitting certified copies of publicly available documents, namely filings made
in other courts. Finally, like the defense of the statute of limitations, the facts related to res
judicata and collateral estoppel are unrelated to the substance of the litigation and, when
applicable, are supposed to present a bar to said litigation, so it is appropriate to resolve these
issues before any discoveryand the accompanying invasion of privacy that will likely result
is allowed in this case. Further, Mr. Walker asks that this motion be heard at the same time as his
current Motion to Dismiss (Dkt. No. 105) (Renewed MTD).
I.
RES JUDICATA BARS THE MAJORITY OF THIS LAWSUIT
By way of background, this Court is probably aware that the Plaintiff has previously sued
Mr. Walker in this Court in Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct.
2013).5 That case involved allegations that Mr. Walker, Mr. Akbar, Mr. Hoge and three other
defendants who are not defendants in the present action committed the following alleged torts: 1)
malicious prosecution, 2) conspiracy to abuse process, 3) defamation, 4) false light, 5)
harassment, 6) Intentional Infliction of Emotional Distress and 7) Stalking. For Messrs. Walker,
Akbar, Hoge and a fourth Defendant named Robert McCain, all of the counts but defamation and

Mr. Walker originally believed this could be decided on a Motion to Dismiss basis. However,
after witnessing the colloquy of this Court with counsel during the September 3, 2015 motion to
dismiss hearing, he believes the appropriate vehicle for these defenses is a Motion for Summary
Judgment.
5
This is in addition to the case filed in the U.S. District Court for the District of Maryland,
discussed previously and in addition to two peace orders filed against Mr. Walker.
4

false light were dismissed on summary judgment on July 1, 2014 by Judge McGann. For those
four defendants, the remaining counts went to trial before Judge Eric Johnson on August 11-12,
2014, where the instant Plaintiff attempted to prove they defamed or placed the instant Plaintiff
in a false light by 1) claiming that the Plaintiff cost Mr. Walker his job, 2) claiming that the
Plaintiff attempted to frame Mr. Walker for a crime, and 3) by claiming the Plaintiff is a
pedophile. At the close of the Plaintiffs presentation, Judge Johnson granted judgment in favor
of those four Defendants under Md. Rule 2-519.6
This prior defeat bars almost the entirety of the instant FAC. Specifically, Counts II
(False Light), IV (Interference with Business Relations),7 V (Interference with Prospective
Economic Advantage), VI (Battery), VII (Intentional Infliction of Emotional Distress) and
VIII (Conspiracy to Commit State Law Torts) are barred in their entirety.8
In Cochran v. Griffith Energy, 426 Md. 134, 43 A. 3d 999, 1002 (2012) the Maryland
Court of Appeals provided a three prong test for when res judicata applies under Maryland law,
requiring that:
(1) the parties in the present litigation are the same or in privity with the parties to
the earlier litigation; (2) the claim presented in the current action is identical to
that determined or that which could have been raised and determined in the prior
litigation; and (3) there was a final judgment on the merits in the prior litigation.
Every single one of these factors are present in the instant action. In relation to the first factor,
the same Mr. Walker and Mr. Kimberlin are present in both Kimberlin v. Walker, et al. and the
The remaining two defendants were eventually dismissed from the case based on an apparent
settlement.
7
Like with the federal complaint, supra note Error: Reference source not found, the causes of
action are written here exactly as the Plaintiff wrote them, mistakes included.
8
The only counts left out of that are I (Defamation) because it isnt asserted against Mr.
Walker, and III (Appropriation of Name, Intrusion into Seclusion, and Unreasonable Publicity)
because its threadbare allegations run from July 1, 2014 until September 14, 2015 when the FAC
was filed. The latter should be dismissed for failure to state a claim.
6

instant action. This is established by examining the Second Amended Complaint filed in that
case, attached originally as Exhibit A to Mr. Walkers original Motion to Dismiss (Dkt. No. 6)
(Original MTD). Regarding the second factor, nothing would have prevented the Plaintiff
from amending his complaint in Kimberlin v. Walker, et al., to include Counts II and IV-VIII
from the present complaint. Indeed, several of the factual questions involved are precisely
identical. With respect to the final factor, the summary judgment and the judgment under Md.

Rule 2-519 represented a final judgment on the merits. Therefore, having met all three prongs
of the test for the application of res judicata, those causes of action are barred.
This alone is sufficient reason to grant summary judgment to Mr. Walker on Counts II
and IV-VIII, and, in the name of judicial economy, Messrs. Hoge, Akbar, and every other
defendant in this case.9 Mr. Hoge and Mr. Akbar should be granted summary judgment because
they were also defendants in Kimberlin v. Walker, et al. As for the remaining Defendants, courts
have regularly held that when defendants are alleged to be in a conspiracy with each other by a
plaintiff, they are in privity for the purpose of defensive res judicata. 10 In other words, while the
Plaintiff has not made proper, non-conclusory allegations that some or all of the Defendants have
conspired together for the purpose of stating a claim for which relief can be granted (see
Renewed MTD pp. 14-15), the mere fact that the Plaintiff has alleged that one exists, FAC 183186, estops him from denying it for res judicata purposes. Every remaining Defendant is alleged
By the same exact logic, Count I should be dismissed on summary judgment, too, in relation to
Defendants Akbar and National Bloggers Club.
10
See, e.g. Discon Inc. v. Nynex Corp., 86 F. Supp. 2d 154, 166 (W.D.N.Y. 2000) (alleged coconspirators are `in privity with one another for res judicata purposes), In re Teletronics, 762 F.
2d 185, 192 (2nd Cir. 1984) (alleged co-conspirator was in privity for res judicata purposes), Goel
v. Heller, 667 F.Supp. 144, 152 (D.N.J., 1987) (relying on Plaintiffs pleadings to establish coconspirator privity for res judicata purposes), McLaughlin v. Bradlee, 599 F.Supp. 839, 847
(D.D.C. 1984), Busse v. Steele, 2010 WL 3894558, at *2 (M.D. Fla. Aug. 18, 2010), Gambocz v.
Yelencsics, 468 F.2d 837, 841 (3rd Cir. 1972), Ananiev v. Freitas, 2014 WL 1400857, at *9
(D.D.C. Apr. 11, 2014), and Airframe Sys. Inc. v. Raytheon Co., 601 F.3d 9, 17 (1st Cir. 2010).
9

to be in that conspiracy and, therefore, dismissal is appropriate on these counts for all Defendants
under res judicata. In short, if the Plaintiff really believes that the Defendants all conspired
together to harm him, then he should have sued all of them the first time.
II.
THE MAJORITY OF THIS CASE IS BARRED BY COLLATERAL ESTOPPEL
Even if res judicata didnt apply (and it does), the other effect of the conclusion of
Kimberlin v. Walker, et al., is that collateral estoppel attaches to every question that was litigated
in that case. 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). As will be demonstrated shortly, collateral estoppel
bars nearly every cause of action except for Count IIIs privacy torts.
A.

The Outcome in Kimberlin v. Walker, et al. Bars Any Claim that the Plaintiff was
Falsely Accused of Causing Mr. Walkers Termination or Attempting to Frame Mr.
Walker for Assault.
In Kimberlin v. Walker, et al., the Plaintiff was allowed to attempt to prove that he was

defamed or put in a false light by any of the following categories of assertions: that the Plaintiff
cost Mr. Walker his job, that Mr. Walker didnt batter the Plaintiff, and the Plaintiff attempted to
frame Mr. Walker for that crime. The Plaintiff failed to prove he had been defamed or put in a
false light for the most substantive reason possible. In Kimberlin v. Walker, et al., Mr. Walker

didnt deny making these statementshe freely admitted to them. Instead, this Court found that
[t]heres not one scintilla of evidence in this case that the statements that were made by these
individuals were false. Original MTD, Exhibit D, p. 266.11
Now, the Plaintiff comes to this Court claiming that that Mr. Walker placed him in a false
light, by claiming that that 1) the Plaintiff cost Mr. Walker his job, or 2) Mr. Walker didnt assault
him and the Plaintiff actually attempted to frame him for that crime. These issues are identical
between the instant suit and Kimberlin v. Walker, et al., meeting the first part of the test for the
application of collateral estoppel. Likewise, Judge Johnsons ruling meets the requirement that
there be a final judgment, meeting the second prong of the test. The Plaintiff is the same person,
meeting the third part of the test for collateral estoppel, and the Plaintiff was given every
opportunity to be heard, meeting the fourth. Therefore, any claim that Mr. Walker placed the
Plaintiff in a false light by claiming that the Plaintiff 1) cost Mr. Walker his job or 2) attempted to
frame Mr. Walker for the crime of assault is barred by collateral estoppel.
However, the outcome of that case affects this case in another way. The Plaintiff also
claimed that Mr. Walker and the other Defendants defamed him or placed him a false light by
stating that 1) the Plaintiff is a pedophile, 2) the Plaintiff seduced his future wife when she was
fourteen years old (and he was in his forties) and continued that sexual relationship until she
became of age, and 3) the Plaintiff also attempted to seduce Mrs. Kimberlins then-twelve-yearold cousin.
As noted in Mr. Walkers Renewed MTD p. 2, this Court has already adopted the
argument by Michelle Malkin and Twitchy LLC (Malkin Memo) that the Plaintiff is
The Original MTD also included a certified copy of the transcript of the July 1, 2014 hearing
where most of the claims were dismissed on summary judgment attached as Exhibit B. Exhibit C
was a certified transcript of the first day of trial in this Court and Exhibit D was a certified
transcript of the second day of trial.
11

defamation-proofthat he has so sullied his own reputation that as a matter of law it cannot be
reduced in the eyes of the community.

These findings related to pedophilia cement the

correctness of that ruling. There are few people who would think that engaging in SWATting (or
anything else the Defendants allegedly alleged about the Plaintiff in this case) is more vile than
being a practicing pedophile.
Likewise, the Renewed MTD noted on pages 3-4 that this Court also adopted the
argument that in order to prove false light, the Plaintiff must show that the allegedly false
statements would be highly offensive to a reasonable person in his position.

Part of the

Plaintiffs position or situation is that because of the outcome in Kimberlin v. Walker, et al., it
is not defamation or false light as a matter of law to call the Plaintiff a pedophile attracted to girls
as young as twelve. The idea that a reasonable person in that position (as well as being in the
position of being a convicted terrorist, perjurer, drug dealer, and so on) would be scandalized by
any of the alleged accusations made by Mr. Walker in this case is absurd, bolstering the
correctness of this Courts ruling on that point as well.
For the reasons outlined above, the Plaintiff is, therefore, collaterally estopped from
claiming any person defamed him or placed him in a false light by claiming that 1) he cost Mr.
Walker his job, or 2) Mr. Walker didnt assault him and the Plaintiff actually attempted to frame
him for that crime. Further, the outcome of Kimberlin v. Walker, et al., further supports the
correctness of this Courts ruling that 1) the Plaintiff is defamation-proof and 2) allegations even
of SWATting would not be seriously offensive to a reasonable person in the Plaintiffs position.
B.

The Plaintiff is Twice Estopped From Claiming that Mr. Walker Battered Him.
As alluded to in the Renewed MTD, collateral estoppel also bars the Plaintiff from

claiming Mr. Walker battered himtwice.

First, the claim is barred by the outcome of Kimberlin v. Walker (I) No.
0601SP005392012 (Md. Mont. Co. Dist. Ct. 2012). This should not be confused with Kimberlin
v. Walker, et al. (the Plaintiff has sued Mr. Walker a lot). Kimberlin v. Walker (I) involved a
Peace Order petition sought against Mr. Walker. Within half an hour of the alleged battery, on
January 9, 2013before the Plaintiff claimed to have gone to the hospitalthe Plaintiff filed for
a Peace Order in Montgomery County District Court asserting that Mr. Walker had assaulted and
harassed him. In an ex parte temporary peace order hearing (also before he claimed he went to
the hospital), that court held that assault (as defined in MD. CODE Crim. Law 3-201) and
harassment had occurred. However, on February 8, 2012, a final peace order hearing was held
with both parties present, and the court determined that while harassment had occurred, no
assault had occurred.12 An appeal in Montgomery County Circuit Court further found that no
harassment had occurred either and dismissed the entire petition. Mr. Kimberlin was at all times
granted a full opportunity to present evidence and make his claims; the judge in the District
Court simply believed Mr. Walker. Therefore, the matter is settled in Mr. Walkers favor, and he
shouldnt be forced to litigate the matter yet again. This is the first estoppel.
The second estoppel comes from the outcome of Kimberlin v. Walker, et al. In that case,
Mr. Walker freely admitted in this Court (before Judge Johnson) that he stated that he did not
batter the Plaintiff13 and, therefore, any evidence the Plaintiff produced purporting to show an
assault or injury was necessarily forged or altered in an attempt to frame him for a crime. To
show Mr. Walker defamed him or put him in a false light, the Plaintiff would have had to prove
A certified copy of the peace order petition, as well as the temporary peace order and the final
peace order (determining that no battery occurred) was attached as Exhibit E to the Original
MTD.
13
Mr. Walker stated that he made no contact with the Plaintiffs body and that his only contact
with his property was in removing the Plaintiffs iPad from his hands without injury, and that this
was done in self-defense.
12

Mr. Walkers assertions false. The only way that the Plaintiff could have proven this statement
false was, at a minimum, to prove that Mr. Walker had battered him. Having failed to prove such
battery and, therefore, any falsehoods about such alleged battery, the Plaintiff should not be
allowed to re-litigate the issue a third time.
C.

The Plaintiff is Estopped From Asserting that Mr. Walker Accused Him of
SWATting Because of the Outcome of Kimberlin v. National Bloggers Club (I).
Because of the ruling in Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-

3059 (D. Md. 2013), collateral estoppel bars the claim that Mr. Walkeror any Defendant
actually accused him of SWATting. By way of background, in that case, the Plaintiff alleged in
part that Mr. Walker and the other Defendants in this case committed fraud (under 18 U.S.C.
1341 and 1343) by claiming, implying, or imputing that the Plaintiff was involved in SWATting
Messrs. Walker, Frey, or Erickson. While Judge Hazels ruling cannot be cited for the ultimate
truth of whether the Plaintiff was involved in those SWATtings, his decision bears on whether the
Plaintiff properly alleged that Mr. Walker (or any Defendant) accused the Plaintiff of having
done so.
This is because both in fraud actions and defamation actions, the Plaintiff must first
allege that a statement was made, followed by an allegation that it was false, and Judge Hazel
found that the Plaintiff failed to properly allege that a statement had even been made. When
reviewing that complaint, Judge Hazel found that [s]pecifically, the SAC fails to allege the time,
place, and contents of any of the alleged mail and wire communications. Exhibit B, p. 9. This
echoes this Courts admonition on September 3, 2015, that you're required to give them notice
by telling them what it is that they said precisely that is actionable, when it is that they said it and
to whom they said it.14
As with the Renewed MTD, Mr. Walker is basing this quotation on the official recordings of
the hearing, rather than an official transcript.
14

10

This Court has a copy of the SAC in Kimberlin v. National Bloggers Club, et al. (I). It
also has a copy of the FAC in the instant suit. If this Court were to examine the allegations of
SWATting in both, this Court would see that the Plaintiff has not added an iota of detail to the
accusations against Mr. Walker (or against any Defendant).15

Therefore, Judge Hazels

determination that the Plaintiff has failed to provide sufficient specificity as to any statements
accusing the Plaintiff of SWATting in that case collaterally estops the Plaintiff from claiming he
sufficiently pled those claims in this casebecause there is no relevant difference between the
current FAC and the SAC in Kimberlin v. National Bloggers Club, et al. (I) in relation to any
claim that any Defendant accused him of SWATting. In short, the Plaintiff has been told by
Judge Hazel and this Court what he must plead to make out his case and he still couldnt do it.
Combined with the preclusive effect of Kimberlin v. Walker, et al., the entirety of the Plaintiffs
false light claims are therefore barred by collateral estoppel, either because he can no longer
claim that the statements are false or because he cannot claim that the statements were made in
the first place.
D.

The Plaintiff is Estopped From Asserting that Mr. Walker Committed Tortious
Interference or Intentional Infliction of Emotional Distress.
In relation to tortious interference, this claim is barred by collateral estoppel because false

light and battery is barred. As noted in the Renewed MTD, the arguments in the Malkin Memo
are the law of this case (with three exceptions that do not apply here). This includes their
argument that liability [for interference] will attach only to interference that is either wrongful
or unlawful. Malkin Memo p. 10 (internal quotation marks and citations omitted).
In the instant case, the Plaintiff writes in FAC 116 that

The Plaintiff does not allege any statement related to SWATting that would not be either wire
or mail communications under 1341 and 1343.
15

11

The Defendants engaged in a concerted campaign of online defamation, false

light, false narratives, battery, intimidation, threats, fraud, the filing of groundless
civil suits and criminal charges, cyber bullying and acting unlawfully, in order to
interfere with Plaintiffs business relationships and his prospective advantage both
as an employee of Justice Through Music and as a musician.
Defamation, false narratives, intimidation, threats, cyber bullying are either not torts at all, or
they are not torts asserted against Mr. Walker and, for this reason, cannot support a claim for
tortious interference. Meanwhile, the claim that Mr. Walker filed groundless civil suits and
criminal charges is estopped by this Courts grant of summary judgment on the claims for
malicious prosecution and conspiracy to abuse process in Kimberlin v. Walker, et al. Finally, the
claim that Mr. Walker committed false light or battery is barred as outlined above. Therefore, the
Plaintiff has failed to plead any tortious conduct to support tortious interference.
Likewise, this Court also granted summary judgment in Mr. Walkers favor on the subject
of Intentional Infliction of Emotional Distress, in Kimberlin v. Walker, et al., foreclosing the
renewed claim in this suit. Finally, in relation to Conspiracy, apart from the fact that it is 1) not a
separate tort and 2) not properly alleged in the first place, the claim of conspiracy related to false
light or battery fails for the same reason the underlying claims fail.
CONCLUSION
In short, this case presents an example of both issue preclusion and claim preclusion. Res
judicata straightforwardly bars every state law tort asserted in Kimberlin v. National Bloggers
Club (I)false light, tortious interference, battery, intentional infliction of emotional distress,
and conspiracy to do the same. Meanwhile, it takes a bit more work to find that the same causes
of action are barred by collateral estoppel, but the outcome is the same. The only causes of
action that are not barred by collateral estoppel or res judicata are 1) publicity of private facts, 2)
intrusion into seclusion and 3) Appropriation of Name or Likenessfor which Defendant Walker

12

has previously shown that the Plaintiff has failed to state a claim. For all of these reasons, partial
summary judgment is appropriate for counts II and IV-VIII.
REQUEST FOR A HEARING
Mr. Walker also hereby formally requests a hearing on this motion for partial summary
judgment at the earliest convenient opportunity and that this motion be heard on the same date as
Mr. Walkers pending Motion to Dismiss (Dkt. No. 105). Mr. Walker notes that he will not be
available on the following dates: November 16 and December 18, 2015. Please note that this
availability has changed since filing that Renewed Motion to Dismiss. Further, since Virginia
courts have a practice of holding motions day every Friday, Mr. Walker suggests that this
Court avoid Fridays for any hearing if possible, so that any unexpected hearings in Virginia are
less likely to come into conflict with any hearing before this Court.

Thursday, July 28, 2016

Respectfully submitted,

Aaron J. Walker, Esq.

Va Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
[Redacted]
AaronJW72@gmail.com

13

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 all
exhibits attached are true and correct copies of the originals.

Dated:

CERTIFICATE OF SERVICE
I certify that on the
day of
, 2015, I served copies of this
document on Brett Kimberlin at [redacted], Bethesda, Maryland 20817, via U. S. Mail and on the
following co-Defendants via email: William Hoge via Patrick Ostronic; DB Capital Strategies
and Dan Backer, Esq. via Dan Backer, Esq.

14

MARYLAND:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

BRETT KIMBERLIN,
Plaintiff
v.

Case No. 403868V

NATIONAL BLOGGERS CLUB, ET AL.,

Defendants

ORDER GRANTING DEFENDANT WALKERS MOTION TO DISMISS

Upon consideration of the Defendant Walkers Verified Motion for Partial Summary
Judgment on the Basis of Res Judicata and Collateral Estoppel, and Request for a Hearing and
any opposition thereto, it is this _________ day of __________________, 2015, hereby
ORDERED that summary judgment is hereby GRANTED as to Counts II, IV-VIII of the
First Amended Complaint (Dkt. No. 91), dismissing those counts; and it is further
ORDERED that such dismissal is GRANTED with prejudice and without leave to
amend.

Hon. Michael D. Mason

Judge, Circuit Court of Maryland for Montgomery County

15