Case 8:13-cv-03059-GJH Document 274 Filed 04/06/15 Page 1 of 2

Judge George Hazel

6500 Cherrywood Lane
Gerenbelt, MD 20770

April 1, 2015

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

Dear Judge Hazel:
Please take this letter as a response to Defendants Dan Backer and DB Capitol
Strategies' request to file a motion for attorney fees and sanctions. The request is
without merit, contrary to law and is barred by res judicata.
These defendants have repeatedly requested and been denied the same type of
sanctions they are now requesting. They represented Defendant Aaron Walker in
two patently frivolous suits against me, one in this Court before Judge Motz, and the
other in the Prince William Virginia County Circuit Court before Judge Potter. In the
federal case, they asked that I be found to be a vexatious litigant and that I be denied
the right to file any further lawsuits without permission from the federal court This
despite the fact that at that time I had only filed one suit in the previous decade and
it resulted in a judgment in my favor. What these defendants wanted from the
federal suit was for Judge Motz to find that the state of Maryland courts were not
capable of handling their own affairs because they ruled in my favor. Judge Motz
found that the request was far outside the authority of the federal courts. See
attached order.
In the state case, Judge Potter found specifically that the case was brought in bad
faith and for an "improper purpose." See attached. In that case, with virtually every
motion filed by these defendants, they requested sanctions in the tens of thousands
of dollars simply for me responding to the motions. Judge Potter denied every
single such request by these defendants.
In the instant case, this Court has found that my 1983 claim against Mr. Frey has
merit and should proceed. It found that I have made viable state law claims and
allowed me to refile those claims in state court which I will do before April 15, 2015.
The Court did not find that those claims were without merit or frivolous, or that I
was vexatious. With regard to the RICO and 1985 claims, the Court simply found
that I did not plead the necessary elements of the claims.
These Defendants are attemptiing to use a sanctions motion/order to undermine
the Court's order allowing me to refile the state law claims in state court They are
attempting to deny me my statutory and First Amendment rights to seek redress for
wrongdoing. To accept the defendants' argument that the mere filing of mutiple
suits or the dismsisal of some counts is grounds for sanctions would put most
lawyers out of business, including legal advocacy organizations such as the ACLU,
Center for Constitutional Rights, Southern Poverty Law Center, Public Citizen
Litigation Group, and Judicial Watch.

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

As far as attorney's fees, the defendants are not entitled to them. First, these
defendants were represented by their own firm. Second, they cannot be considered
prevailing parties since most of the claims against them are going to be heard in
state court. Third, I am a pro se litigant who is the victim of the tortious conduct of
the defendants. Fourth, it was the defendants' own misconduct of filing improper
lawsuits against me that led to the legal claims against them. In fact, since I could
not file for legal fees after prevailing in those two suits, my only recourse for
recovery was in the civil court arena. Fifth, they used those malicious suits to do
something unprecedented -launch a website and raise tens of thousands of dollars
based on the false narrative that I swatted conservative bloggers. They pocketed
that money, yet they now want to ask this Court to further pervert justice by
imposing tens of thousands more in legal fees against me for seeking justice and
redress.
Finally, last week, when I asked these defendants if they were interested in
resolving this case prior to me re-filing the state law claims in state court, they
responded by saying that I would have to pay them $25,000 or they would file for
sanctions and fees in excess of $50,000.
For all these reasons, this Court should deny these defendants request to file for fees
and sanctions.

Bre K" berlin

8100 Beech Tree Rd
Bethesda, MD20817

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

PAR
V I R GIN

T I A L

T RAN

S C RIP

I A

IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

x
AARON J. WALKER,
Plaintiff,

-vs-

Case No. CL12-631-00

BRETT KIMBERLIN,
Defendant.
x
Circuit Courtroom 4
Prince William County Courthouse
Manassas, Virginia
Tuesday, December 4, 2012
The above-entitled

matter carne on to be heard

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

the Circuit Court of Prince William County, in the
Courthouse, Manassas, Virginia, beginning at 11:15 o'clock
a.m.

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Case 8:13-cv-03059-GJH Document 274-1 Filed 04/06/15 Page 2 of 12

APPEARANCES:
On Behalf of the Plaintiff:
DAN BACKER, ESQUIRE
On Behalf of the Defendant:
(Pro Sel

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Case 8:13-cv-03059-GJH Document 274-1 Filed 04/06/15 Page 3 of 12

EXT

G S

sworn by

the Clerk of the Court.)

THE COURT:

The Plaintiff has brought a complaint against

We're back on the record.

the Defendant Kimberlin, and two other Defendants who are

10

not before the Court today personally.

11

Their complaint contains thirty-two counts of

12

which fourteen involve the Defendant Kimberlin.

13

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

14

twenty-three,

twenty-four,

15

twenty-seven,

and thirty-two.

twenty-five,

Counts

twenty-six,

The Defendant Kimberlin has filed a motion to

16
17

dismiss the complaint for failure to state a claim, the

18

lack of jurisdiction,

19

First Amendment.

20

improper venue, and violation of th=

Kimberlin's motion to dismiss will be granted

21

That is motions for any additional

22

denied.

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C E E DIN

(The Court Reporter was previously

PRO

R ACT

sanctions will be

In light of the Court's ruling on the motion

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Case 8:13-cv-03059-GJH Document 274-1 Filed 04/06/15 Page 4 of 12

to dismiss, the other pending motions by the Court are

moot and therefore dismissed as well.

Plaintiff's motion for default judgment

against the co-defendants

dismissed.

Upon consideration
pleadings

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

the Plaintiff seeks two million dollars in punitive

including the attached exhibits and the argumen~

10

damages, but makes no claim for compensatory

11

that the Plaintiff

12

the law.

damages so

(inaudible) is not recognizable under

It's also clear from the various pleadings an

14

exhibits filed in this case that the parties have been

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involved in extensive disputes that have involved

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political and religious issues.

17

of the totality of the

13

:;

are also denied and the case is

These various claims including criminal and

18

civil allegations and litigations in state and federal

19

courts all of which appear to have been dismissed.

20

most recent case filed by the Plaintiff against the

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Defendant Kimberlin and his two organizations

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

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

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The

was

Case 8:13-cv-03059-GJH Document 274-1 Filed 04/06/15 Page 5 of 12

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

unwise to intervene in the bitter political disputes

between the parties."

clear that this case is simply a continuation

and vindictive

litigation between the parties.

failing to state a claim is an issue generally addressed

by demurrer, and Defendant Kimberlin has not filed a

demurrer in this case.

11

It's also true that Virginia law provides tha

12

the signature of an attorney or a party with any pleading

13

before this Court constitutes a certification

14

the pleading is well grounded in fact, warranted by

15

existing law, and is not interposed for any improper

16

purpose such as to harass or to cause unnecessary delay or

17

needless increase in the cost of litigation.

by him that

18

The Court finds that the complaint is not weI

19

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

20

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

21

political dispute between the parties.

22

While the statute provides for sanctions by

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of meritles~

While the law in Virginia is clear that

10

It's

This Court takes the same position.

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

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Case 8:13-cv-03059-GJH Document 274-1 Filed 04/06/15 Page 6 of 12

Defendant Kimberlin.

The Court denies the motion for any further

sanctions.

The Court further finds that count two is

based upon a claim of defamation.

elements on defamation
1)

Publication,

2)

Of an actual statement and,

3)

Intent.

In order to assert a claim of defamation

11

however the Plaintiff must first show that the Defendant

12

published a false factual statement that concerns and

13

harms the Plaintiff.

14

But here by the Plaintiff's own allegations

15

including paragraph

16

statements allegedly made by the Defendant were not

17

directed at the Plaintiff.

18

fifty-one they indicate that the

In addition, as the Defendant has stated in

19

his motion to dismiss and here today expressions of

20

opinion are constitutionally

21

actual as defamation.

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protected and they're not

So as a matter of law the Court finds that th

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are:

10

Under Virginia law, th~

statements set forth in the complaint do not contain

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provable false factual statements but are relative in

nature and depend upon the viewpoint of the speaker.

Counts four and five are dismissed for lack

proper jurisdiction and venue.

As to count eight, it is based on allegation

of intentional

to recover on a claim of intentional infliction of

emotional distress the Plaintiff must satisfy four

elements of proof:

11

That the Defendant's conduct was

The Defendant's conduct was outrageous an

2)

13

intolerable and,
3)

14
15

wrongdoers

17

There was a causal connection between th

conduct and the resulting emotional distress,

The resulting emotional distress was

4)

16
severe.

18

Even taken in the light most favorable to the

19

Plaintiff, the Court cannot find that the alleged

20

statements of the Defendant Kimberlin were outrageous or

21

could be the basis of any severe emotional distress.

As to count fourteen, that count is based on

22
23

In orde

intentional and reckless and,

12

infliction of emotional distress.

1)

10

the tort of interference with business expectations

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

the elements

of that

2
probability

objective

of future
test

or expectancy

Defendant's

continued

to Plaintiff

of
as an

of that

relationshi

certainty

misconduct

relationship

4)

The

5)

Damages

that

absent

Plaintiff

the

would

have

and,

interference

was by improper

methods

and,

13

resulted

from

that

improper

interference.

14

The complaint

15

elements.

16

any way

It fails
improper

17
lack

Count

20

to state

business

sufficient

and

all

of the

facts

that

sixteen

are dismissed

And

is based

the elements

of that

1)

An allegation

22

2)

An agreement

and,

23

3)

To willfully

and maliciously

&

i1

for

on the Virginia

21

were

and venue.

twenty-three

conspiracy.

to state

by the Defendant.

fifteen

of jurisdiction

19

fails

methods

Counts

18

benefit

knowledge

Reasonable

in that

12

or expectancy

and,

intentional

10
11

economic

Defendant's

3)

relationship

and,

2)

include:

A business

1)

tort

of two or more

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are:

persons,

interfere

Case 8:13-cv-03059-GJH Document 274-1 Filed 04/06/15 Page 9 of 12

with another in his trade, reputation, business, or

profession by any means and,

without justification.

The given complaint fails to state sufficient

facts to support the elements of the tort and fails to

state those specific facts with reckless and

particularity.

Count twenty-four is based on the tort of

10

Virginia Common Law of Conspiracy and the elements of the

11

tort include:

12

1)

Two or more persons combined to,

13

2)

Accomplish by some concerted action for

14

some criminal or unlawful purpose, or an unlawful purpose

15

by unlawful and criminal means.

16

If a Plaintiff fails to allege the tort with

17

reckless and particularity.

Counts twenty-five,

18

twenty-six, and twenty-

19

seven are dismissed for lack of jurisdiction

20

for the reasons set forth herein.

21

Malice, that is an intentional purpose an

4)

and venue anj

Count thirty-two is based upon Plaintiff's

22

request for an injunction, but an injunction requires one

23

irreparable harm and two, a lack of adequate remedy of

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10

law.

In view of the fact no compensatory

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

the allegations

that the Plaintiff would not have an adequate remedy of

law or a claim of merit.

7
8

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

sixteen, twenty-three,

twenty-four, twenty-five,

10

six, and twenty-seven,

and thirty-two is granted.

12

dismissed with prejudice.

13

exceptions

14

ruling of the Court.

The Court shall note the

of the Plaintiff and the Defendant to the

The other motions are therefore rendered moot

16

and are also dismissed.

17

dismiss the motion for default judgment against the co-

18

defendants

19

Court.

20

twenty-

The motion is granted and those counts are al

15

set forth in the complaint or any showing

Therefore, the Defendant's motion to dismiss

11

damages

At the same time the Court will

upon the same grounds as set forth by the

I will ask counsel to prepare an order which

21

simply reflects the ruling of the Court which is that the

22

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

23

dismissed.

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11

Thank you, gentlemen.

1
2

END

EXT

RAe

* * * * *

(Whereupon, at approximately

a.m., the hearing in the above-entitled

concluded.)

11:57 o'clock
matter was

10
11

12
13
14
15
16
17
18
19
20
21
22
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*****
CERTIFICATE
I, SUZANNE
hereby

certify

foregoing

that

OF REPORTER

GONZALES,

I took

proceedings

the

which

a Verbatim
stenographic

I thereafter

typewriting;

that

the

proceedings;

that

I am neither

nor

by any of the parties

employed

these

proceedings

relative

were

or employee

by the parties
interested

foregoing

held;

counsel

and,

nor

in the outcome

notes

reduced

is a true

record

for,

further,

or counsel

financially

of the

of said

related

that

do

to

to the action

of any attorney

hereto,

Reporter,

to,

in which
I am not

employed

or otherwise

of the action.

SUZANNE GONZALES
Verbatim
Reporter

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Case 8:13-cv-03059-GJH Document 274-2 Filed 04/06/15 Page 1 of 2

Case 8:12-cv-01852-JFM

Document 33

Filed 11/28/12

Page 1 of 2

f" ""J
IN THE UNITED STATES DISTRICT COURT U.S. O\S1RirJ.~~q~R~\lO
FOR THE DISTRICT OF MARYLAND
\l\S1f<\C; Of "f ,\ \...

AARON WALKER

v.
BRETT KIMBERLIN

lUII t{1l12 \\ P \2: \ l\

,,'" "r. f 'C;;.
." ~-

"L\'.f\r, "'
I...

!).1 BAl-~\'
.p

~.

~ ..

v'-

::,,:.,"'(

Civil No. -JFM-t2,I852

t.... -"

MEMORANDUM

Aaron Walker has brought this action against Brell Kimberlin and two organizations with
which Kimberlin is associated.

Kimberlin has filed a motion to dismiss and a motion for Rule II

sanctions against Walker'sallomey.

Kimberlin's motion to dismiss will be granted but his

motion for Rule II sanctions will be denied.

The parties apparently have been involved in intense political disputes over the years.
Walker complains that Kimberlin has filed meritless law suits against him. He seeks a
declaration from this courlthat
approval from an administrative

Kimberlin is a vexatious litigant and requiring that he seek

law judge before he can bring any type of action against Walker.

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

law judge to

approve the filing of any suits filed by Kimberlin or any organization associated with him against
Walker. Although Walker also seeks $150,000 in punitive damages, he makes no claim for
compensatory damages,

Thus, the claims he asserts are not cognizable.

See Scott v. Jenkins, 690

A.2d 1000, 1008 (Md. 1997); Shabazz v. Bob Evans Farms, Inc., 881 A.2d 1212, 1233-34 (Md.
App.2005).
As to the Rule II motion, I deem it unwise to intervene in the biller political disputes
between the parties. In any event, although plaintiff is cautioned that the institution of any

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

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

similar suit in the future may result in the imposition of sanctions, I have concluded that here the
imposition of Rule I I sanctions would not be appropriate.

Lo

a.4~

---r-

'--

J~
erick Mo~
United States District Judge