INTHE CIRCUIT COURT OF CARROLL COUNTY WILLIAM HOGE Plaintiff, v. No. 06¢16070789 BRETT KIMBERLIN and ‘TETYANA KIMBERLIN, Defendants. DEFENDANT BRETT KIMBERLIN’S REPLY TO PLAINTIFF'S OPPOSITION TO HIS MOTION FOR SANCTIONS FOR FAILING TO ATTEND A DEPOSITION OR OTHERWISE PROVIDE DISCOVERY ON THE ISSUE OF DAMAGES Defendant Brett Kimberlin hereby replies to Plaintiff Hoge’s opposition to his Motion to Sanctions for Hoge failing to attend a deposition on the issue of damages and his refusal to provide any requested documents regarding damages. 1, Hoge initially asserts that he did not have to attend the deposition because discovery ended on April 28, 2017. However, he did not raise or list damages until June 1, To this, he asserts that Defendants never asked him about damages so he had no obligation to mention them. This game of “gotcha’ is not what civil cases are all about. Why should Defendants have asked about damages when none were alleged and when Judge Mason told Aaron Walker that incidental damages are not allowed in cases such as this? 2, IfPlaintiff wanted damages, he should have listed them in his Complaint rather than waiting until after discovery to list them in his pretrial statement. 3. As soon as Defendants received the pretrial statement, they sought to take a deposition from Plaintiff and to discover on what documents he was relying for damages. This is what is allowed for by the Maryland rules.4, Hoge also bizarrely asserts that Defendants did not attempt to resolve any discovery disputes. However, this is nota discovery dispute. Rather itis a complete refusal of Hoge to comply with discovery requests and attend a deposition. 5. Moreover, as Defendants made clear in their motion for sanctions, after they requested the documents and the deposition, Hoge flatly stated that he was refusing to comply. That is the clearest evidence that the Defendants did attempt to seek discovery and Hoge rejected those requests. How could that be resolved by any further efforts by Defendants? 6. As Defendant Brett Kimberlin noted in his Motion to Sanctions, Hoge did not seek a protective order, but rather simply refused to comply. 7. Moreover, the Maryland Court of Appeals has made clear that a plaintiff must make a specific claim for punitive damages in the prayer for relief in order to allow consideration of a punitive damages award. Scott v. Jenkins, 690 A.2d 1000, 1008, 0997): In sum, in order to properly plead a claim for punitive damages, a plaintiff must make a specific demand for that relief in addition to a claim for damages generally, as well as allege, in detail, facts that, if proven true, would support the conclusion that the act complained of was done with "actual malice." Nothing less will suffice. Viewed in light of the principles articulated above, the trial court erred by submitting Jenkins’ punitive damages instruction to the jury. Even assuming that his Amended Complaint specifically and sufficiently alleged facts that would have supported the conclusion that Scott acted with the requisite "actual malice” to support a punitive damages award, Jenkins failed to make a specific claim for such damages. His prayer for damages and general relief were simply insufficient to inform Scott of the extraordinary nature of the additional relief sought against him. 8 In the instant case, Hoge’s Prayer for Relief on pages 34 and 35 of his complaint does not even mention punitive damages and therefore, under Scott, he isnot entitled to even assert them at trial, However, in his pretrial statement, Hoge has stated that Defendants should pay him more than $2,000,000 in punitive damages. Because of this contradiction with Scott, Defendants are entitled to discovery on the issue of damages. 9, Moreover, Hoge does not even allege any damages on the two defamation counts, Counts VI and IX, and he only alleges incidental litigation costs on the two malicious prosecution counts, land XI. But, as Judge Mason ruled in the Walker case, citing Maryland case law, incidental costs of litigation are not recoverable. See Empire Reality Co. v. Fleisher, 269 Md. 278, 285 (1973) (“The general rule is that, other than usual and ordinary court costs, the expenses of litigation — including legal fees incurred by the successful party — are not recoverable in an action for damages.”) Wherefore, this Court to grant Defendants’ request for sanctions either in the form of outright dismissal of this case or by prohibiting Hoge from arguing for any monetary damages in this case. (301) 3205921 justicejtmp@comeast.s CERTIFICATE OF SERVICE I certify that | mailed this motion to Plaintiff this July 7, 2 Brett Ki in