MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

OPPOSITION TO THE DEFENDANTS SECOND MOTION FOR SUMMARY

JUDGMENT
NOW COMES the Plaintiff, Aaron J. Walker, Esq., and files this Opposition to the
Defendants Second Motion for Summary Judgment (Dkt. No. 164) (hereinafter MSJ) and
states the following:
1.

This Opposition is being filed simultaneously with a Motion to Strike

Defendants Answer (Dkt. No. 163) and Latest Motion for Summary Judgment (Dkt. No. 164),
with the intention that this Opposition only be considered if this Court does not strike the
Defendants latest motion for summary judgment.
2.

This latest motion for summary judgment is frivolous and can be disposed of

quickly.
3.

The Defendants first argue that Mr. Walker has failed to allege a sufficient

amount of damages to maintain jurisdiction in this Court. First, it is curious and revealing that in
a case where the Defendants are alleged to have trespassed on Mr. Walkers First Amendment
rights, they argue that the deprivation of such rights is valueless.

4.

However, that is of no moment, for the Defendants have once again forgotten that

Mr. Walker is seeking injunctive relief. Even assuming arguendo that Mr. Walker has failed to
plead the jurisdictional minimum of more than $5,000 (see MD. CODE Cts. & Jud. Proc. 4405 and 4-402(d)(1)(i)), this Court has exclusive jurisdiction whenever one has a case in
equitywith only limited exceptions that do not apply in this instance ( 4-402(a)).
5.

However, Mr. Walker has actually pled that jurisdictional minimum of more than

$5,000. The Defendant claims, without any citation, that pain and suffering are not allowed for
compensation in a case like this where there is no personal injury. MSJ 4. However, not only
is pain and suffering allowed, it is considered to be ordinary tort damages. Larimore v.
American Ins. Co., 69 Md.App. 631, 643 (Md. App., 1987) rev'd on other grounds, 314 Md. 617,
552 A.2d 889 (1989).
6.

Likewise, the Defendants assert without valid citation that Punitive damages

cannot be used to bootstrap a jurisdictional amount.

MSJ 5.

For this principle, the

Defendants cite Saval v. BL LTD., 710 F. 2d 1027 (4th Cir. 1983). In Saval, the plaintiff failed to
meet the jurisdictional minimum required in a federal diversity case by the use of punitive
damages. However, Saval didnt say that punitive damages could not be used to meet the federal
amount-in-controversy requirement: it merely said the plaintiff had failed to properly plead such
damages.
7.

Maryland Code itself, however, indicates what kind of damages can be included

when determining whether a plaintiff has met the jurisdictional threshold, if one adheres to the
canons of statutory construction. MD. CODE Cts. & Jud. Proc. 4-402(d)(1)(i) states that in
cases such as these
the plaintiff may elect to file suit in the District Court or in a trial court of general
jurisdiction, if the amount in controversy exceeds $5,000, exclusive of
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prejudgment or postjudgment interest, costs, and attorney's fees if attorney's fees

are recoverable by law or contract.
Since 4-402(d)(1)(i) does lay out specific exceptions to what kinds of damages can be included
in the amount in controversy determination, by the principle of expressio unius, all other forms
of damages are implicitly allowed to be counted when determining whether this case meets the
amount in controversy threshold.
8.

Further, Saval can be cited in the Plaintiffs favor when determining whether

punitive damages have been properly pled. As the Saval court correctly states, Under Maryland
law, no matter what the theory of recovery, punitive damages cannot be recovered absent malice,
actual or implied. 710 F.2d 1033. Malice is an element of malicious prosecution, and this
Court has twice affirmed as the law of this case that malice can be implied from lack of probable
cause.
9.

Indeed, Mr. Walker has addressed the Defendants claim that he has not

sufficiently pled actual malice before, in his opposition to their motion to dismiss the Fourth
Amended Complaint (Dkt. No. 92). On pages seven and eight of that prior opposition, Mr.
Walker showed how he pled actual malice as follows:
The allegations in the 4AC support the malice element as follows. First, in
paragraph 100(d) of the 4AC it is alleged that each prosecution (or civil action)
was initiated with malice or a purpose other than bringing Mr. Walker to
justice. Second, in paragraph 2 it is alleged that for about four years, Mr.
Kimberlin has been attempting to intimidate Mr. Walker into silence by the filing
of false criminal charges[.] Third, in paragraph 13, in relation to the July 30,
2013, charges filed by Mr. Kimberlin, it is alleged that In seeking charges
against Mr. Walker, Mr. Kimberlin was mainly attempting to criminalize the
practice of law and also attempting to criminalize speech protected by the First
Amendment. Fourth, in paragraph 35, in relation to the May 18, 2015, charges
filed by Mrs. Kimberlin, it is alleged that this set of charges was an attempt to
use K.K. as a human shield in order to criminalize 1) expression protected by
the First Amendment and 2) ordinary legal representation. Fifth, Mr. Walker
repeatedly demonstrated how the Defendants lacked probable cause, enumerating
3

dozens of falsehoods in each application for charges. Finally, overall, Mr.

Walkers 4AC (and the Third Amended Complaint which is incorporated by
reference in paragraph 1 of the 4AC) paints a picture of a pair of Defendants
acting in retaliation against Mr. Walker for 1) exercising his right to free
expression under the First Amendment including efforts to expose Mr.
Kimberlins criminal and immoral activities, and 2) providing legal aid to Mr.
Kimberlins enemies (which at one point in time included Defendant Tetyana
Kimberlin). Brett Kimberlin is like Al Capone, using muscle to silence those
who call attention to his illegal and immoral behavior, but instead of using
criminals as his muscle, he uses the instrumentalities of the State of Maryland
to intimidate others. All of this is more than enough to establish malice and a lack
of probable cause in relation to the criminal complaints at issue in this case.
By this method, Mr. Walker argued that his complaint shows actual malice.

Indeed, the

Defendants argument borders on farcical. This Court has already found that Mr. Walker has
sufficiently alleged that the Defendants deliberately lied to the commissioner repeatedly in order
to institute charges against Mr. Walker. Do the Defendants believe that intentionally lying to get
a person charged with a crime is not a malicious act? It would be revealing if that was their
position.
10.

Likewise, the Defendants accurately quote from K & K MANAGEMENT, INC. v.

Lee, 316 Md. 137, 557 A. 2d 965, 984 (1989) where it states that actual malice is often defined
as the performance of an act without legal justification or excuse, but with an evil or rancorous
motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.
One is tempted to ask if the Defendants actually comprehend the words they just quoted because
this quotation doesnt help them. What the Lee court is describing is precisely what is being
alleged here. By the allegations in the current complaint, the Defendants set out to abuse the
criminal justice system, out of hatred, in order to deliberately and willfully injure Mr. Walker.
11.

Finally, the Defendants assertwithout any evidencethat Mr. Walkers

reputation is so poor that it cannot be damaged more, and, therefore, Mr. Walker cannot
4

recover reputational harm. MSJ 9.1 This defamation-proof doctrine has been reserved for
some of the worst criminals in our society: a habitual criminal, Cardillo v. Doubleday & Co.,
Inc., 518 F. 2d 638 (2nd Cir. 1975); a serial killer, Jackson v. Longscope, 394 Mass. 577 (1985);
the assassin of Dr. Martin Luther King, Jr., Ray v. Time, Inc., 452 F. Supp. 618 (W.D. Tenn.
1976); and a serial bomber, (Brett Kimberlin). This Court simply cannot presume without
evidence that Mr. Walker has joined such scurrilous company.
12.

In short, the Defendants have offered no reason why this Court cannot exercise

jurisdiction in this case. They have failed to account for this Courts equity jurisdiction, and they
have failed to show generally that Mr. Walker did not adequately plead damages. Accordingly,
their latest motion for summary judgment should be denied.

WHEREFORE, based on the foregoing, this Court should deny the Defendants MSJ and
provide any other relief that is just and equitable.

Friday, July 1, 2016

Respectfully submitted,

Aaron J. Walker, Esq.

Va Bar# 48882
P.O. Box 3075
Manassas, Virginia 20108
AaronJW72@gmail.com
(703) 216-0455
(no fax)

The Defendants also claim, without citation, that reputational harm cannot be considered as part
of the damages assessed.
5

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

MARYLAND:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

ORDER DENYING THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Upon consideration of the Defendants Motion for Summary Judgment on Basis of Lack
of Jurisdiction and Failure to Plead Damages (Dkt. No. 164), the Plaintiffs Opposition thereto, it
is this _________ day of __________________, 2016, hereby
ORDERED that the Defendants motion to for summary judgment is hereby DENIED.

Hon. Michael D. Mason

Judge, Circuit Court of Maryland for Montgomery County