1 V I R G I N I A IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY x : : : : : : Case No.

CL12-631-00 : : : : : x

AARON J. WALKER, Plaintiff, -vsBRETT KIMBERLIN, Defendant. -

Circuit Courtroom 4 Prince William County Courthouse Manassas, Virginia Tuesday, December 4, 2012 The above-entitled matter came 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. APPEARANCES: On Behalf of the Plaintiff: DAN BACKER, ESQUIRE On Behalf of the Defendant: (Pro Se)
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2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 here? MR. KIMBERLIN: THE COURT: Yes, Your Honor. Mr. Walker? MR. BACKER: Dan Backer, Your Honor, on behalf P R O C E E D I N G S (The Court Reporter was previously sworn by the Clerk of the Court.) THE COURT: Aaron J. Walker, Plaintiff, versus

Brett Kimberlin and Ron Brynaert and Neal Rauhauser, Defendants, in 12-631. Whose is present on behalf of the Plaintiff,

of Mr. Walker who is present as well. THE COURT: All right. And is Mr. Kimberlin

And Mr. Kimberlin is present, Mr.

Bryneart is not and Mr. Rauhauser are not present. All right, this comes on -- as you know we’ve consolidated at least three motions that are on the docket to heard today and put them all on one date for a date certain from the motions day and I appreciate your patience because I know we had to continue it to today’s date. So we will proceed. I think the threshold You need to

motion is clearly the motion to dismiss.

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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 proceed on that one first and then we will take up the other motions. The three motions being the Plaintiff’s motion or the Defendant’s motion to dismiss, which we will take up first, and in addition to that we have Plaintiff’s motion for sanctions and Plaintiff’s motions for protective order and stay. All right, so we will start with Mr. Kimberlin; you want to heard, sir? MR. KIMBERLIN: THE COURT: MR. BACKER: Yes, Your Honor.

Mr. Backer? Yes, we filed a default motion

against the Defendants Brynaert and Rauhauser as well and tried to consolidate to today’s date. to be brought to your attention. THE COURT: I saw one at the last minute but I I just wanted that

thought it was set for -- it was stuck in my Term Day docket but it may well be on this docket today. When did you file that, do you know? MR. BACKER: We filed a couple of weeks before

-- last Friday would have been the earliest possible date and then we asked that it be consolidated with today as well. So I’m guessing seventeen, eighteen days ago.

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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 THE COURT: All right. Well, as long as

you’ve filed it with the Clerk we can go ahead and proceed with it. MR. BACKER: THE COURT: Thank you. All right, let’s take the motions Mr. Kimberlin, do you

-- first the motion to dismiss. want to heard? MR. KIMBERLIN:

Yes, I do.

First of all, a couple of days ago I filed a motion to take judicial notice of a decision from the Federal Court in Greenbelt, Maryland. I just want to make

sure that you saw that before we get started. THE COURT: I did. Okay. So I would ask that the The

MR. KIMBERLIN:

Court take that into consideration in this case. issues are fairly similar.

There is one count in that complaint that is almost identical to a count in this case. tortuous interference with contract. Mr. Walker alleged in that case that he was fired from his job because of my contacting his job or something to that effect, which I never did. The Judge, the Federal Judge, in that case It’s the

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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 rejected all of Mr. Walker’s claims and dismissed the federal complaint against both me and the organizations in which I’m involved. So I believe that that decision collaterally stops Mr. Walker in this case from arguing the same points. As to my motion to dismiss, numerous claims as to the complaint in this case, there are dozens of counts, eleven criminal counts that he’s alleging under different jurisdictions, some from Virginia, some from Maryland, some from New York, some from D.C., some from Federal. And all these, except for one, have no private right of civil action. The only one that does have a

private right of civil action is the business reputation, 499 issue, from the state of Virginia. In that case it requires a conviction, 499, prior to the filing of civil action under 18.2-500. So I

don’t think that counts four, five, six, seven, twentythree, twenty-seven, twenty-eight, twenty-nine, thirty, and thirty-one and thirty-two are allowable in this case because they are criminal statutes and some of them are foreign jurisdictions. As to any -- again going to the foreign

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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 jurisdictions, count four is from a federal criminal statute. Count five is from a Maryland criminal statute. Count seven

Count six is from a federal criminal statute. is from a Maryland criminal statute. Maryland civil statute. statute.

Count nine a

Count eleven a Maryland civil Count

Count thirteen a Maryland civil statute.

fifteen a Maryland civil statute. statute.

Sixteen, D.C. civil Nineteen D.C. Twenty-

Eighteen Maryland civil statute.

civil statute.

Twenty-one a D.C. civil statute.

two New York civil statute.

Twenty-three again is the

business conspiracy statute under Virginia criminal law. Twenty-five is under Maryland law, again civil. six New York law civil. under federal law. federal law. Twenty-

Twenty-seven federal stalking

Twenty-eight federal stalking under

Twenty-nine federal stalking under criminal And count thirty and thirty-one under And count thirty-two under

law of New York.

New York criminal law. Virginia criminal law.

Again, I believe that this case is a civil case and it’s a Virginia case. It’s not a Maryland case,

it’s not a New York case, it’s not a D.C. case, it’s not a federal case. And for the Plaintiff to allege that this

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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Court has jurisdiction to apply those statutes is erroneous. Secondly, as far as jurisdiction goes, I never set foot in this county during the time that these allegations occurred, therefore I ask the Court to find that it does not have a jurisdiction over this case. The only thing that the Plaintiff is alleging is that he read an e-mail or a post from the internet on his computer here in Virginia and I think that that doesn’t give this Court jurisdiction to hear the case. So as far as foreign jurisdictions, there is twenty-one counts that rely on foreign statutes. five, six, seven, nine, eleven, thirteen, fifteen, sixteen, eighteen, nineteen, twenty, twenty-one, twentytwo, twenty-three, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, and I believe that all of these are improper in this Court and should be dismissed. As far as counts two, four, and five they allege extortion and defamation and the extortion and defamation occurred according to the complaint as part of a settlement matter in a Maryland civil case in which I was involved. Four,

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8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 And the Fourth Circuit has been very clear that it’s held that as a matter of public policy settlement negotiations are necessarily inadmissible and other cases to encourage frank discussions and that comes from the Fiberglass Insulators, Inc. versus Dupuy 856 F. 2nd 652 and 654. In this case counts two, four, and five allege that I defamed Mr. Walker by sending his attorney, Beth Kingsley, and e-mail as part of settlement. And it’s

interesting that Mr. Walker actually sent an e-mail back with a counter settlement after I sent that e-mail. So for him to allege now that it’s extortion and defamation is just not appropriate and certainly is not actionable in this case. As far as the entire case, basically it boils down to the fact that Mr. Walker doesn’t like what I said or what Neal said or what Ron said. Ron is a reporter and

for me to be sued for talking to a reporter or allegedly talking to a reporter is a very slippery slope as far as the First Amendment is concerned. I have a right to talk about Mr. Walker. knew his identity. I

I knew that Mr. Walker used a fake And I

name, Aaron Worthing, in a civil case in Maryland.

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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 asked him to identify himself and he refused, so I asked him the Court to issue an order and to get his identity. I discovered his identity from a third party and I informed the Court in that case in a motion that Mr. Walker was actually -- I mean, Mr. Worthing was actually Mr. Walker. That’s basically the extent of it. I have

never done anything else except to write to his attorney and so once that happened, once I identified Mr. Walker, Mr. Walker then went to his employer and told his employer that he’s been identified and he informed his employer that he had been the publisher of a blog called Everyone Draw Mohammed which without belaboring the point, it was an anti-Muslim blog or an anti-prophet Mohammed blog. And of course he has a first amendment right to publish that blog, but he informed his employer that he’s been identified. His employer was obviously

concerned that this could cause problems for the firm and for his co-workers, so they terminated him. But they didn’t just terminate him at whim. They went into his office and -MR. BACKER: Excuse me, Your Honor. May I

object at all during his statement?

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10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 objection? MR. BACKER: Mr. Kimberlin is attempting to THE COURT: What’s the grounds of the

testify and insert facts into this conversation when this is about a questionable blog, whether or not the allegations in the complaint justify a -- or can be sustained in the face of a motion to dismiss which presumes the facts are as alleged. Mr. Kimberlin is attempting to testify here and insert facts into evidence instead of arguing the law. THE COURT: dismiss Mr. Kimberlin. MR. KIMBERLIN: was no defamation. mean, his employer. employer. And I have a First Amendment right both under access to the Court in that civil case in Maryland to inform the Judge about the identity of Mr. Walker. Mr. Your Honor, the point is there You need to stick to motion to

I never contacted his attorney -- I So I couldn’t defame him to his

Walker had filed papers in that court using a fake name, Aaron Worthing. I had a right to identify him in that court under the First Amendment and I also had a right to speak

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11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 and finish. MR. KIMBERLIN: speak about that. a right. I have a right to He object -MR. KIMBERLIN: THE COURT: I have a right to speak -out about his identity under the First Amendment. He has

no right to gag me from talking about him if I know who he is. And that’s what he has asked this Court to do in this

particular law suit. He’s asked this Court to issue an injunction prohibiting me from ever telling anyone in count thirtytwo -- from ever telling anyone that he is Aaron Walker -Aaron Worthing, the publisher of the hate Mohammed blog because he doesn’t want people to know. MR. BACKER: Again, Your Honor, I’m going to

These are the facts that are set

forth in the pleadings, Counsel, so I will overrule the objection at this point. MR. KIMBERLIN: THE COURT: And I have --

Go ahead, Mr. Kimberlin, go ahead

I have a right to speak about that.

had no right to gag me at that time and he has now sued me saying that I tried to get him killed basically or harm him or get him fired. And I never talked to his employer

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12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Amendment. at all. He’s the one that contacted his employer. filed this lawsuit in this case using his own name, admitting that he was Aaron Worthing and Aaron Walker, but he sued me for going into a court and exercising my First Amendment right to access to the Court and informing the Judge about the identity of a lawyer who had filed papers using a fake name. And I had a right to do that under the First It’s not actionable. He can sue me but it’s He

protected First Amendment activity and this is free speech. And again going back to the federal decision, he’s filed that case basically accusing me of abusing process and getting him fired and interfering with his First Amendment rights. Well, the Judge in that case

decided against him and decided against him without even a hearing, just looking at the pleadings. Deciding against

him the day after the motion to dismiss was filed. And I think that shows the kind of thing that we’re dealing with here. We’ve got a case that’s been

filed against me for almost a year and thousands of tweets about me and thousands of blog posts about me and then Mr.

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13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Walker raising tons of money to litigate this case because it’s so big and it’s First Amendment and all this stuff. But it really boils down to the fact that he was identified as the publisher of a Muslim hate blog and he didn’t like that. He wanted to do that with anonymity

forever and insult Muslims and get Americans killed overseas and you know I had a right to expose that. a right to discuss that. And he’s turned this into a political battle. It’s partisan politics at its worst. And you know I I had

believe that this case fails to rise to the level of a decent legitimate this Court should consider and I ask that the Court dismiss it. THE COURT: Thank you, sir. Counsel want to

heard in response the motion to dismiss. MR. BACKER: Yes, sir, Your Honor.

First with respect to the Maryland decision, the Maryland litigation was a federal case involving different parties and different claims specifically focused on the constitutional law implications of Mr. Kimberlin’s use of state mechanisms to further his conduct. These are completely different claims and we

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14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 don’t believe that any of these claims -- the claims here are barred by a ruling there. Moreover, a facial reading of the order by the Judge simply states that the case was dismissed several weeks after Mr. Kimberlin filed his motion to dismiss and after I responded. a separate motion. But based solely on the grounds that the remedy sought specifically was improperly pled. Specifically, we should have asked for compensatory damages and didn’t. And that is on the face of the order. It happened to coincide with another,

It does not in any way address any of the substantive points from that claim. And as I’m sure Your

Honor knows and I just repeat for the record, Rule 1.6 regarding res judicata, res judicata claimed preclusion specifically states that a claim must rise from identified conduct, a transactional occurrence. on the merits. It must be decided

In this case it was not.

Moreover, it bars a second or subsequent similar action in a Virginia court. But this case

precluded the Maryland litigation which was commenced in response to activities in Maryland unrelated to the claims here.

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15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 There is only one possibly corresponding claim that between these two matters and that is our count fifteen of the Virginia claim, interference with business relations under Maryland law and tortuous interference of contract in the federal case. over there. So we believe that we fall well within the scope of the -- or rather outside of the scope of Rule 1.6 res judicata, claim for preclusion, because the test isn’t met. Moving on, most of the counts that Mr. Kimberlin argues that most of the counts in our complaint are based on statutes outside Virginia and therefore can’t possibly be actionable. I would start by saying that in the Choice of Law analysis, Virginia courts have consistently adhered to the lex loci delicti standard which says with the last act completing the tort occurred governs where the tort may be tried. That’s from General Insurance of America, Inc. v. Overby-Seawall Company in the Eastern District of Virginia. Because the last act of each of the torts that So there is the only cross

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16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 we’re alleging occurred here in Virginia, either personally or through communications to individuals here in Virginia or with respect to internet matters through servers and computers located in Virginia, we believe the lex loci delicti standard clearly holds and allows us to bring these foreign matters under Virginia jurisprudence. Next Mr. Kimberlin discusses that the criminal statutes are inapt and that we -- but Virginia Section 18.2-500 of the Virginia Criminal Code specifically grants a private cause of action civil court to any person injured in his profession by a business conspiracy. And so within the scope of North American Mortgage Investors v. Pomponio -- I’m sorry, that’s an unrelated -- that one I will bring up a little bit later. But the Virginia Code does allow us to bring tort actions for criminal violations including criminal violations from outside the jurisdiction. Next, Mr. Kimberlin argues that -- essentially Mr. Kimberlin is raising a demurrer as we argued in our response. And then he’s saying that this Court, lack of But

venue and lack of personal jurisdiction and so forth.

these arguments are irrelevant and superfluous because he waived his right to bring most of these arguments when he

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17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 answered the complaint in the first place. And frankly as to personal jurisdiction, you know, Mr. Kimberlin has been coming to this Court and arguing before this Court and filing motions before this Court in this matter well before he filed what is an improperly pled demurrer in this motion to dismiss. So venue and personal jurisdiction as we argued in our response are apt. Quite a lot to cover here. Next I’d like to

mention that Mr. Kimberlin talked about his communications with Beth Kingsley, the former attorney of Mr. Walker in this other Maryland matter awhile back, is inadmissible. However, Mr. Kimberlin has himself taken privilege to use the exact same discovery -- settlement negotiations -with other counsel and injected them into this case by concluding those discussions in his motions filed here. Specifically, our conversations with Mr. Jeffrey Cohen who’s an attorney representing the two organizations that Mr. Kimberlin is an employee of, our negotiations with him ended up in this filing. So it’s a

little hypocritical to argue that only the negotiations of the settlement negotiations that benefit him may be admitted.

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18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Mr. Kimberlin also argues that this was a partisan political matter and you know Your Honor to be frank, these two gentlemen have different political ideologies is irrelevant to the torts here. I’m not aware

that the words Republican, Democrat, Conservative, or Liberal really appear anywhere in our complaint. they do, they’re merely descriptive. This is not a political matter. It’s a But if

question as to the tort claims and the tort -- the tortuous conduct of Mr. Kimberlin towards Mr. Walker. And as we detailed in Exhibit A in our response, we feel that each and every one of these claims is justified with respect to Mr. Kimberlin and certainly with respect to the other defendants who Mr. Kimberlin continues to argue on their behalf that counts against them somehow should be dismissed as well. Your Honor, we believe this case is apt. believe the arguments that the counts raise are meritorious and that this motion should be denied. THE COURT: Mr. Kimberlin, in response. Thank you. We

MR. KIMBERLIN:

First of all, I didn’t waive anything intentionally. I did mention in the answers to the

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19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 complaint of jurisdiction that that would be one of my defenses. So I don’t think that’s been waived. As far as the other defendants, I’ve been charged with a conspiracy count or multiple conspiracy counts and basically I’m accused of somehow talking to a reporter and this is some conspiracy. I mean when a person talks to a reporter and he gets sued for conspiracy, you know, it’s pretty strange in the United States and of course I’m going to argue that there’s no conspiracy because there is none. And if that happens to get the charges dismissed against Mr. Rauhouser and Mr. Brynaert, well, so be it. But to say that there’s a conspiracy that they

presented not one shred of evidence of a conspiracy. I mean all I did was file a motion in court and sent an e-mail to his attorney. this entire case. He doesn’t say I did anything else. have a right to file a motion in court. Now I That’s the basis of

If the Judge

doesn’t like it, or if they don’t like it, they can complain to the Judge. You know, they don’t come and sue me in another court and say that I’ve done all of these things

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20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 which I didn’t do. I filed a single pleading, a one-page

pleading and all this has come out because I identified him as Aaron Walker and that he filed pleadings using a fake name in that court. If somebody came into this court, you know, and filed a pleading in this court using a fake name, I would want them identified, too. Judge. So you know that’s basically what this case boils down to. I identified this man as Aaron Walker and I think you would too,

I’ve suffered all of this abuse ever since. I’ve never blogged once about this man. I’ve

never said one thing out of the courthouse about this man or have a legal situation about this man. He’s tweeted about me thousands and thousands and thousands of times. I’ve gotten death threats to my

family and I’ve had people stalking me at my house with craziness. And I’ve had to get peace orders against the

people who are doing this because this man has created this narrative, this false narrative, that Brett Kimberlin got him fired from his job and we know that’s not true. We know that’s not true because his employer wrote him back in January telling him exactly why he was

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21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 what it is. fired for being incompetent, for blogging on company time, and for poking at a major religion to hope that extremists would come out and hurt him or hurt the people at the firm. And that’s it. That’s why he was fired. But

he’s suffered this abuse on me because he wants to be the victim and he wants this Court to buy into that and say, yes could sue Mr. Kimberlin. You can take him to court

and put him on the stand and get all this discovery in. Put him under oath and get him fired from his job. what they want. And I’m asking you to look at this case for It’s a hit job on me. It’s base on nothing That’s

that’s actionable. Thank you. THE COURT: Thank you, sir. We’ll take about

a ten minute recess and then I’ll come back. (Recess.) THE COURT: We’re back on the record.

The Plaintiff has brought a complaint against the Defendant Kimberlin, and two other Defendants who are not before the Court today personally. Their complaint contains thirty-two counts of

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22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 which fourteen involve the Defendant Kimberlin. Counts

two, four, five, eight, nine, fourteen, fifteen, sixteen, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, and thirty-two. The Defendant Kimberlin has filed a motion to dismiss the complaint for failure to state a claim, the lack of jurisdiction, improper venue, and violation of the First Amendment. Kimberlin’s motion to dismiss will be granted. That is motions for any additional sanctions will be denied. In light of the Court’s ruling on the motion 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 are also denied and the case is dismissed. Upon consideration of the totality of the pleadings including the attached exhibits and the argument of the parties and counsel it is clear to this Court that the Plaintiff seeks two million dollars in punitive damages, but makes no claim for compensatory damages so that the Plaintiff (inaudible) is not recognizable under

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23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 the law. It’s also clear from the various pleadings and exhibits filed in this case that the parties have been involved in extensive disputes that have involved political and religious issues. These various claims including criminal and civil allegations and litigations in state and federal courts all of which appear to have been dismissed. most recent case filed by the Plaintiff against the Defendant Kimberlin and his two organizations was dismissed by order of the U.S. District Court in the District of Maryland on November 28, 2012, just six days ago, in which the Judge stated and I quote, “I deem it unwise to intervene in the bitter political disputes between the parties.” This Court takes the same position. It’s The

clear that this case is simply a continuation of meritless and vindictive litigation between the parties. While the law in Virginia is clear that failing to state a claim is an issue generally addressed by demurrer, and Defendant Kimberlin has not filed a demurrer in this case. It’s also true that Virginia law provides that

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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 sanctions. The Court further finds that count two is based upon a claim of defamation. elements on defamation are: 1) 2) 3) Publication, Of an actual statement and, Intent. Under Virginia law, the the signature of an attorney or a party with any pleading before this Court constitutes a certification by him that the pleading is well grounded in fact, warranted by existing law, and is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. The Court finds that the complaint is not well grounded in fact, it’s not warranted by existing law, and it’s imposed for an improper purpose as part of an ongoing political dispute between the parties. While the statute provides for sanctions by the Court, this Court will grant the motion to dismiss by Defendant Kimberlin. The Court denies the motion for any further

In order to assert a claim of defamation however the Plaintiff must first show that the Defendant

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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 published a false factual statement that concerns and harms the Plaintiff. But here by the Plaintiff’s own allegations including paragraph fifty-one they indicate that the statements allegedly made by the Defendant were not directed at the Plaintiff. In addition, as the Defendant has stated in his motion to dismiss and here today expressions of opinion are constitutionally protected and they’re not actual as defamation. So as a matter of law the Court finds that the statements set forth in the complaint do not contain 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 of proper jurisdiction and venue. As to count eight, it is based on allegation of intentional infliction of emotional distress. to recover on a claim of intentional infliction of emotional distress the Plaintiff must satisfy four elements of proof: 1) That the Defendant’s conduct was In order

intentional and reckless and,

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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 and, severe. Even taken in the light most favorable to the Plaintiff, the Court cannot find that the alleged statements of the Defendant Kimberlin were outrageous or could be the basis of any severe emotional distress. As to count fourteen, that count is based on the tort of interference with business expectations and the elements of that tort include: 1) A business relationship or expectancy of a 2) The Defendant’s conduct was outrageous and

intolerable and, 3) There was a causal connection between the

wrongdoers conduct and the resulting emotional distress, 4) The resulting emotional distress was

probability of future economic benefit to Plaintiff as an objective test and, 2) Defendant’s knowledge of that relationship

or expectancy and, 3) Reasonable certainty that absent the

Defendant’s intentional misconduct Plaintiff would have continued in that relationship and, 4) The interference was by improper methods

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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 elements. 5) interference. The complaint fails to state all of the It fails to state sufficient facts that were in Damages resulted from that improper

any way improper methods by the Defendant. Counts fifteen and sixteen are dismissed for lack of jurisdiction and venue. Count twenty-three is based on the Virginia business conspiracy. 1) 2) 3) And the elements of that are:

An allegation of two or more persons, An agreement and, To willfully and maliciously interfere

with another in his trade, reputation, business, or profession by any means and, 4) Malice, that is an intentional purpose 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 Virginia Common Law of Conspiracy and the elements of the tort include:

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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1) 2) Two or more persons combined to, Accomplish by some concerted action for

some criminal or unlawful purpose, or an unlawful purpose by unlawful and criminal means. If a Plaintiff fails to allege the tort with reckless and particularity. Counts twenty-five, twenty-six, and twentyseven are dismissed for lack of jurisdiction and venue and for the reasons set forth herein. Count thirty-two is based upon Plaintiff’s request for an injunction, but an injunction requires one, irreparable harm and two, a lack of adequate remedy of law. In view of the fact no compensatory damages are sought, there can be no showing of irreparable harm in the allegations set forth in the complaint or any showing that the Plaintiff would not have an adequate remedy of law or a claim of merit. Therefore, the Defendant’s motion to dismiss counts two, four, five, eight, nine, fourteen, fifteen, sixteen, twenty-three, twenty-four, twenty-five, twentysix, and twenty-seven, and thirty-two is granted. The motion is granted and those counts are all

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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 dismissed with prejudice. The Court shall note the

exceptions of the Plaintiff and the Defendant to the ruling of the Court. The other motions are therefore rendered moot and are also dismissed. At the same time the Court will

dismiss the motion for default judgment against the codefendants upon the same grounds as set forth by the Court. I will ask counsel to prepare an order which simply reflects the ruling of the Court which is that the Defendant’s motion to dismiss is granted and the case is dismissed. Thank you, gentlemen. * * * * * (Whereupon, at approximately 11:57 o'clock a.m., the hearing in the above-entitled matter was concluded.)

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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136

30 * * * * * CERTIFICATE OF REPORTER I, SUZANNE GONZALES, a Verbatim Reporter, do hereby certify that I took the stenographic notes of the foregoing proceedings which I thereafter reduced to typewriting; that the foregoing is a true record of said proceedings; that I am neither counsel for, related to, nor employed by any of the parties to the action in which these proceedings were held; and, further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, nor financially or otherwise interested in the outcome of the action.

____________________________ SUZANNE GONZALES Verbatim Reporter

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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136

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