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IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

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:
:
BRETT KIMBERLIN :
:
Plaintiff, :
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v. : Civil No. 380966
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AARON WALKER, ET AL. :
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Defendant. :
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HEARING







Rockville, Maryland July 1, 2014










NATIONAL CAPITOL CONTRACTING, LLC
200 North Glebe Road, Suite 1016
Arlington, VA 22203
(703) 243-9696

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND



----------------------------x
:
:
BRETT KIMBERLIN :
:
Plaintiff, :
:
v. : Civil No. 380966
:
AARON WALKER, ET AL. :
:
Defendant. :
:
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Rockville, Maryland

July 1, 2014


WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE: THE HONORABLE TERRENCE J. MCGANN, JUDGE

APPEARANCES:

FOR THE PLAINTIFF:
BRETT KIMBERLIN, Pro Se
8100 Beech Tree Road
Bethesda, MD 20817

FOR THE DEFENDANT:
PATRICK F. OSTRONIC, Esq.
932 Hungerford Drive, Suite 28A
Rockville, MD 20850





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P R O C E E D I N G S
THE COURT: And youre representing yourself, correct?
MR. KIMBERLIN: Yes sir.
THE COURT: All right.
MR. KIMBERLIN: Yes, your honor.
MR. OSTRONIC: Good morning, your honor. Patrick
Ostronic on behalf of the defendants Mr. Akbar, Mr. McCain, Mr.
Hoge, and Mr. Walker.
THE COURT: All right, good morning. We are here on
several motions filed on both sides.
MR. OSTRONIC: Yes, your honor.
THE COURT: And Im happy to start with either the
discovery or the meat, the summary judgment one.
MR. OSTRONIC: Your honor, I have no preference if you
want to start with your motion of summary judgment.
MR. KIMBERLIN: Sure.
THE COURT: All right. Well go with the plaintiffs
motions and certainly -- unless youre addressing the court you
can feel free to have --
MR. KIMBERLIN: No, Im ready.
THE COURT: -- a seat.
MR. OSTRONIC: Thank you, your honor.
THE COURT: Sure. Yes sir, Mr. Kimberlin?
MR. KIMBERLIN: Yes, the -- this case involves a group
of what I call tea party extremists who have chosen to attack
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me, literally and figuratively, with allegations -- many, many
allegations of criminal activity. And theyve engaged in a
multi-year campaign to file criminal charges against me, file
civil charges against me in multiple jurisdictions and Federal
Court in Greenbelt and Manassas of -- the circuit court in
Virginia, in Carroll County, in Howard County, in Montgomery
County.
Ive been under siege for literally years from these
guys. Every single case has been dismissed, nolle prossed,
thrown out in some way shape or form. Theres been probably a
dozen judges, right here in this court, in Federal Court, State
Court, District Court, who have all had to suffer through the
things that these guys have done. Just last Thursday I was in
Federal Court because one of the defendants, Mr. Hoge, filed a
lawsuit against a reporter who reported on this. He filed 367
criminal charges against a reporter who wrote stories --
MR. OSTRONIC: Objection, your honor. Can I just
state one thing here?
THE COURT: Yes.
MR. OSTRONIC: Plaintiff is operating here pro se but
plaintiff is still the plaintiff.
THE COURT: Yes.
MR. OSTRONIC: And he is not able to testify,
according to Maryland law, and I would wish that he --
THE COURT: All right.
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MR. OSTRONIC: -- would just relay -- relate to
Maryland -- to the argument for the case of the law, and not
start bringing --
THE COURT: All right --
MR. OSTRONIC: -- testimony into the case.
THE COURT: -- Ill sustain that. Mr. Kimberlin I
need to only have you address whats in the pleadings --
MR. KIMBERLIN: Okay.
THE COURT: -- that pertain to these motions. So --
MR. KIMBERLIN: Well I --
THE COURT: -- Ill sustain with respect to the other
--
MR. KIMBERLIN: Im trying to get to the --
THE COURT: I know.
MR. KIMBERLIN: -- you know, Im trying to give you a
little background so you understand what Ive been going
through.
THE COURT: And Im fine except we just have to have
some kind of parameters.
MR. KIMBERLIN: Okay maybe we should address what hes
just addressed. Hes saying that I cant testify. Hes been
beating me over the head with this for -- since this suit was
filed.
THE COURT: Well he cant testify either today.
MR. KIMBERLIN: No. Im just saying, hes saying I
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cant testify because of a perjury conviction.
THE COURT: Oh I get it. But were not at trial yet.
MR. KIMBERLIN: I know. Im just --
THE COURT: But you just want to use that for your
discovery argument.
MR. KIMBERLIN: But thats an issue that he keeps
throwing at me. I mean he says I cant introduce affidavits, I
cant testify in court --
THE COURT: But were not -- thats premature, though,
as far as the testifying in court because were not at trial.
MR. KIMBERLIN: I understand.
THE COURT: All right.
MR. KIMBERLIN: But hes, you know, he has stated that
I cant even put in an affidavit --
THE COURT: All right.
MR. KIMBERLIN: -- in this case at all. You know,
hes saying that because of a perjury conviction I cant do
that. And so -- but then hes asking me to answer
interrogatories under oath, which is inconsistent with what hes
-- why does he want me to answer interrogatories under oath if
he cant use them in a trial for whatever reason. And --
MR. OSTRONIC: Your honor, are we veering over to the
other -- to the sanctions now?
MR. KIMBERLIN: No Im just --
THE COURT: Looks like were, kind of, jumping around
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a little.
MR. KIMBERLIN: Im just trying to get to that --
MR. OSTRONIC: I just want to know what Im -- I
dont know what Im paying attention to, thats all.
THE COURT: I think youre capable of following it.
MR. OSTRONIC: Okay.
THE COURT: If I didnt I would slow him down but I
think --
MR. OSTRONIC: Thank you.
THE COURT: -- youre fine. I like your tie, by the
way.
MR. OSTRONIC: Thank you.
MR. KIMBERLIN: So, you know, every time that weve
had hearings --
THE COURT: Yes.
MR. KIMBERLIN: -- in the past, his clients have been
here.
THE COURT: All right. So I understand one of your
arguments is I shouldnt -- there shouldnt be sanctions or I
shouldnt compel discovery because I -- they have to be under
oath and, therefore, I get an exemption because I have a perjury
conviction and, therefore, I dont have to comply with
discovery.
MR. KIMBERLIN: Thats not true. I mean Ive complied
-- Ive answered his admissions. Ive answered his --
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THE COURT: So all right so then you --
MR. KIMBERLIN: -- production of documents.
THE COURT: -- youre saying youve answered
everything.
MR. KIMBERLIN: No Ive -- in his request to answer
the interrogatories under oath is -- Im saying that he cant
have it both ways. To not allow me to testify or put in --
THE COURT: So what are you saying? You say Ill
answer him but not under oath?
MR. KIMBERLIN: No. Ill answer him.
THE COURT: But I thought --
MR. KIMBERLIN: If we can --
THE COURT: Did you answer him or did you not answer
him?
MR. KIMBERLIN: I said that I will not participate in
his game --
THE COURT: Okay.
MR. KIMBERLIN: -- which is his game of using -- not
allowing me to testify when it helps me, but then allowing me to
testify when he can take those answers for whatever reason he
wants to. And hes saying that I cant testify at trial.
THE COURT: I understand.
MR. KIMBERLIN: So why does he need that? Well Ill
tell you why he needs that, because these defendants take
everything --
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MR. OSTRONIC: Objection, your honor. Hes
speculating.
MR. KIMBERLIN: -- that I do, whether its --
THE COURT: All right Ill sustain the objection.
Just talk about the -- not what you anticipate to happen at
trial. But just on the -- your motions.
MR. KIMBERLIN: Okay the motion for summary judgment,
Judge Burrell, Judge Algeo, you know, have ruled on several of
these issues already. They came in with motions to dismiss;
they made these same arguments. Judge Burrell denied them.
They came in and argued theres no defamation.
Several judges, Judge Rubin, Judge Algeo, all denied that. They
made -- they said that theyre a prima facie case per se --
prima facie case of per se defamation. Why? Because theyve
accused me, falsely, of crimes. Both judges used that prima
facie evidence to order the disclosure of some anonymous
bloggers in this case. And to make that -- to get that order
she -- those judges had to find prima facie evidence of
defamation.
MR. OSTRONIC: Your honor, just for the record, that
anonymous blogger is not part of the motions today. And its a
--
MR. KIMBERLIN: Well Im not saying that.
MR. OSTRONIC: -- separate case. Its not even --
that anonymous blogger is not even -- its -- anything that
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happened to the anonymous blogger has nothing to do with the
four people were talking about right now.
THE COURT: So the proceeding or rulings had nothing
to do with this case is what the defense is saying?
MR. KIMBERLIN: No.
MR. OSTRONIC: Not -- nothing -- hes talking about
the prima facie, which is -- and which they found under Brodie,
which -- but that was for an anonymous blogger who is not part
of the motions today is --
THE COURT: Okay, all right --
MR. OSTRONIC: -- what Im saying.
THE COURT: -- Ill --
MR. KIMBERLIN: Its another defendant. But the
motions to dismiss do deal with this -- these defendants. This
man right here filed a motion to dismiss, which were heard on
January or February 13th by Judge Burrell. She had a big old
hearing. She heard all this. She saw all the same testimony
Im going to show you today, you know, about them calling me a
pedophile or a murderer and attacking my daughter and, you know,
it -- seeing the sealed affidavits of my daughter and seeing
these guys, you know, personally attack my daughter online.
Shes 14 years old.
THE COURT: All right I read your complaint.
MR. KIMBERLIN: Okay so you know what thats all
about. So Im saying that, you know --
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THE COURT: Well I knew what the complaints all about
I dont -- you know, thats why we --
MR. KIMBERLIN: So right now theyre coming in and
trying to make the same argument that theyve -- thats been
rejected by Judge Burrell in a motion to dismiss. I mean maybe
the standards are slightly different here, but the facts are not
different. I mean the facts are the facts.
Did they defame me? Im not a pedophile. Im not a
murderer. Im not a terrorist. You know, these are things that
they say every day. Im not a rapist. They say Im a rapist.
This is what they Tweet. I mean, Ive got literally, literally
tens of thousands; not one. I mean Courtney Love lost a Twitter
case a few months ago over one Tweet. She had to pay hundreds
of thousands of dollars for one defamatory Tweet. Ive got
literally thousands and thousands of Tweets calling me a
murderer, calling me a pedophile --
THE COURT: All right I follow. I understand that.
MR. KIMBERLIN: -- calling me a rapist --
THE COURT: Yes I understand.
MR. KIMBERLIN: This is per se defamation as a matter
of law, whether it involves his other defendant, who hes saying
is not here today, which is -- but its the same thing. These
guys do this every day.
THE COURT: Okay.
MR. KIMBERLIN: I mean to just --
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THE COURT: Well move on, I understand.
MR. KIMBERLIN: -- in the last 48 hours defendant
Walker has --
MR. OSTRONIC: Objection, your honor. Thats not
relevant to this --
THE COURT: Yeah, sustained.
MR. OSTRONIC: -- case right now.
MR. KIMBERLIN: Well it got -- my --
THE COURT: Mr. Kimberlin, move on from --
MR. KIMBERLIN: Okay so weve got --
THE COURT: -- what you believe you have in your
defamatory claim.
MR. KIMBERLIN: So with defamation and theres also
another tort, false light; they presented me in a false light.
Theyve done this intentionally to get the public outraged at
me. This outrage has filtered down to my daughter who got run
out of her school. Bullied out of her school. She had to
change schools, judge.
MR. OSTRONIC: Objection, your honor. Please --
MR. KIMBERLIN: To Montgomery County Public Schools --
THE COURT: Im not passing judgment on damages, sir.
MR. KIMBERLIN: No Im just trying to get you to
understand the false light. With false light --
THE COURT: It doesnt matter what youre just trying
to do.
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MR. KIMBERLIN: Well with false light you have to show
that they went out in the public, with a campaign, to present
you in false light.
THE COURT: All right.
MR. KIMBERLIN: Okay, thats -- so when youve got
false light and then youve got -- youve also got the abuse of
process. I mean one case after the other case, and I can start
presenting those cases to you here in evidence.
In this court -- I mean Ive got the Maryland case
search; I guess that will suffice for todays hearing. Case
after case, nolle prossed. Mr. Walker has charged me with --
MR. OSTRONIC: Objection, your honor. If hes going
to argue for abuse of process, or what have you, for summary
judgment, would he just lay out the outlines of the elements of
the tort so that we can then say yay or nay. You have the
evidence presented on this. Right now hes flitting back and
forth.
THE COURT: Yeah I agree, Ill sustain that.
MR. KIMBERLIN: Okay. Well I mean I thought we went
through defamation you were okay with that, my presentation.
THE COURT: Well --
MR. KIMBERLIN: I mean do you want me to show you the
articles of where they called me a pedophile?
THE COURT: I would actually -- its on the
sufficiency of the pleadings and -- I want to hear from the
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other side and then you can --
MR. KIMBERLIN: I mean, you know --
THE COURT: -- rebut.
MR. KIMBERLIN: -- Ive got articles here that says,
you know, where Im right in the headline, Why is pedophile
Brett Kimberlin mad at us?
MR. OSTRONIC: Your honor --
MR. KIMBERLIN: I mean --
THE COURT: All right, Im not going to accept that.
Thats not -- Im only accepting what I have at this point.
MR. KIMBERLIN: Well, I mean, Ive cited this in my
complaint. Im just trying to -- if you want documentary
evidence, if thats what hes asking --
THE COURT: All right.
MR. KIMBERLIN: -- for I dont --
THE COURT: Why dont we hear from the defense and
then you can rebut. How is that?
MR. KIMBERLIN: Oh, I guess thats fine.
THE COURT: Because all youre doing at this point is
telling me what all the damages that you have.
MR. KIMBERLIN: No. Im trying to show you that these
things happened. These are facts -- theres a factual basis for
--
THE COURT: And you told me that.
MR. KIMBERLIN: Okay. And the --
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THE COURT: Im not going to receive new documents.
MR. KIMBERLIN: Oh, well these that I meet the
statutory basis for the -- for defamation --
THE COURT: For your counts.
MR. KIMBERLIN: -- which is, you know, a false
statement and all that.
THE COURT: All right.
MR. KIMBERLIN: And same thing with the false light,
the same thing with the abuse of process and conspiracy to
abuse. So, you know, thats my point that Ive got -- Ive met
the statutory -- the count 1, malicious prosecution. How much
more malicious do you have to do to -- after youve been charged
and hauled into court, after court, after court, had police
showing up at your house, you know, over and over --
MR. OSTRONIC: Objection again, your honor.
MR. KIMBERLIN: -- pulled into States Attorneys
office over, and over, and they all dismiss. They all --
THE COURT: All right.
MR. KIMBERLIN: -- throw it out. They say theres no
merit.
THE COURT: Okay.
MR. KIMBERLIN: Thats malicious prosecution.
THE COURT: All right well youre getting a little
repetitious.
MR. KIMBERLIN: Okay, well thats count 1. Count 2,
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conspiracy to abuse process. You know, theres elements of this
offense. Ive met all the elements of this tort. You know,
they go in and they file stuff that has no probable cause. Its
ruled in my favor, every time. You know, no matter what kind of
case it is they always rule in my favor. And I have to suffer
from it and then they take those -- they file these charges and
then what do they do? They go online and they say Kimberlin,
Brett Kimberlin, charged by the State of Maryland after what
they -- they go and file the charges and they say, State of
Maryland charges Kimberlin with perjury. Or State of Maryland
charges Kimberlin with harassment. Or State of Maryland charges
Kimberlin with rape or sexual assault, or whatever. These guys
are the ones that are doing it. And so then I -- Im -- my
children and me were facing this every single day. Oh my God,
you know your dad is --
THE COURT: All right Im going to sustain the
objection. Now youre getting into --
MR. KIMBERLIN: Okay, so thats --
THE COURT: -- youre testifying now.
MR. KIMBERLIN: Thats abuse of process. And, you
know, the defamation is so clear. I mean weve got per se in
Maryland --
THE COURT: You mentioned the --
MR. KIMBERLIN: -- youve got per se defamation. They
said I was involved with crimes, and these are all false
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portrayals.
You know, Ill admit, right now, that theres an issue
with the harassment and the stalking. I think that its --
should be an issue for the jury. Technically, maybe, theres
not a tort for harassment and stalking. I cant find --
THE COURT: All right.
MR. KIMBERLIN: -- any cases. I dont think Mr.
Ostronic could either. You know, Im being honest about that.
But its been so abusive in this case. These guys have followed
me to court --
THE COURT: Well thats not the test.
MR. KIMBERLIN: Okay, right. And if your honor says
thats the -- if --
THE COURT: If you have a stalking charge, or
harassment charge, you need to either see the police or a
commissioner.
MR. KIMBERLIN: Yeah. Okay. Then well take that --
THE COURT: Thats your remedy.
MR. KIMBERLIN: -- well subsume that right into the -
- into one of the other counts, which is -- you know normally
its subsumed into an affliction of emotional distress or
something. I mean when people follow me to court, come out and
beat my ass out -- right outside the courtroom, thats -- I
think thats stalking. I think that should be a jury issue. I
think emotional distress comes from that, you know, to go to
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court and then get beat up when you walk out the door.
THE COURT: Okay. All right --
MR. KIMBERLIN: So, you know, Im willing to give them
that.
THE COURT: You said that and I understand that.
MR. KIMBERLIN: And --
THE COURT: I follow you.
MR. KIMBERLIN: But all the other ones Ive met the
statutory definitions.
THE COURT: All right.
MR. KIMBERLIN: Ive met the elements of the offense
and I have the documents to prove it.
THE COURT: Okay.
MR. KIMBERLIN: I mean this is a very, very egregious
case that I have to live with every single day.
THE COURT: Mr. Kimberlin, now --
MR. KIMBERLIN: Yes?
THE COURT: -- youre getting into your closing
argument.
MR. KIMBERLIN: Okay. So Ill let him --
THE COURT: Thank you.
MR. KIMBERLIN: -- speak now.
THE COURT: All right, lets -- while youre up, lets
go through the ones that he concedes, I believe, on the --
MR. OSTRONIC: Thats stalking --
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THE COURT: -- stalking and harassment.
MR. OSTRONIC: -- harassment which, I believe, are
counts 5 and 7, is that correct?
THE COURT: Lets find out here. Lets -- give me one
second here Im going to get the -- I never have a lot of files
here. Are we dealing with the -- the complaint Im dealing
with, is there more than one amendment? I have the first
amendment.
MR. OSTRONIC: There was a second --
MR. KIMBERLIN: There was a second amended complaint.
MR. OSTRONIC: Yeah. The second amended, your honor.
MR. KIMBERLIN: It was basically just adding --
THE COURT: What tab is that?
MR. KIMBERLIN: It was adding a -- the names of the
anonymous defendant, or anonymous bloggers.
THE COURT: Let me find what that tab is. See that
because the first one was 17. Lets see -- oh thats good. Are
these on the second amendment? Or the same ones I guess.
MR. OSTRONIC: Yes, your honor.
THE COURT: Brandon on it [phonetic sp]? Just names
so I can go with it first then. Let me just see whats the
docket number for that that it was filed.
MR. OSTRONIC: The date was around the 1st of April,
Larry called, so --
THE COURT: Okay because amended bill of complaint was
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October of 13 --
THE CLERK: That was 1/23 your honor.
MR. OSTRONIC: That was the first one.
THE COURT: 1/23?
THE CLERK: Yes.
THE COURT: All right.
MR. OSTRONIC: Amended bill of complaint. Yes, your
honor.
THE COURT: Okay this is the second amended complaint
and the most current, so Ill -- well deal with that.
MR. OSTRONIC: Okay, your honor.
THE COURT: All right so the harassment, I believe,
are -- is count 5.
MR. OSTRONIC: Five yes, your honor.
THE COURT: And the position of the defendant is there
is no tort for harassment.
MR. KIMBERLIN: Ill withdraw the stalking and
harassment at this time.
THE COURT: And that the plaintiff concedes. So let
me get to the counts.
MR. KIMBERLIN: Five --
THE COURT: All right so count 5, harassment of this -
- Ill grant the defendants motion to dismiss.
MR. OSTRONIC: For -- and, your honor, I would ask
that be spread out to all the defendants, even the ones you
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dont have motions on.
THE COURT: McCain, Hoge, Walker, and Ali?
MR. OSTRONIC: Ali Akbar too. And theres another
defendant, the anonymous Kimberlin Unmasked, and then -- which
he named in the second one. He assumes that their names are
Peter Malone and Lynn Thomas. I would just ask that they be
dismissed also, even though he has not yet served them in this
case.
MR. KIMBERLIN: Well they avoided service.
MR. OSTRONIC: That I --
MR. KIMBERLIN: I dont think he should of -- you
should dismiss that against them and -- because let them answer
--
THE COURT: Well in it hes got -- hes just saying
defendants plural. And it -- hes got one count 5.
MR. OSTRONIC: One Count 5 --
MR. KIMBERLIN: Right.
MR. OSTRONIC: -- against all -- I know he mentions
them all so I would just say -- I would just, for the sheer
efficiency of the court, just toss harassment and stalking
against all the defendants. Not just the ones who are --
motions before you today.
THE COURT: All right Ill just -- Ill grant count 5
with respect to -- Ill just -- Ill dismiss count 5 with
respect to all defendants.
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MR. OSTRONIC: Thats what I would say, yeah.
THE COURT: And thats harassment and with respect to
count 7, thats conceded in there on stalking and that is not a
recognized tort; plaintiff concedes. Ill grant the motion to
dismiss count 7 with respect to all defendants.
MR. OSTRONIC: Thank you, your honor.
THE COURT: Okay. Okay lets deal with the other --
any other easy counts?
MR. OSTRONIC: Okay your honor, I am going -- I am now
arguing against plaintiffs motion for summary judgment, is that
correct? Is that what were talking about [unintelligible]
still?
THE COURT: Yeah and you can incorporate your motions
for summary judgment as well. Lets --
MR. OSTRONIC: Okay well I can jump right into it
then.
THE COURT: Yeah.
MR. OSTRONIC: Okay --
THE COURT: Right.
MR. OSTRONIC: -- thats fine, your honor. Make the
arguments that way.
THE COURT: I think itd be easier especially since
were --
MR. OSTRONIC: I agree, your honor.
THE COURT: -- jumping.
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MR. OSTRONIC: Well Ill just go down, first of all,
just to show as to plaintiffs motion for summary judgment.
Again I will point out that plaintiff has not provided a single
answer to a single interrogatory, nor has he provided a single
document that we requested on this case. Therefore, it is
disingenuous, at best, that the plaintiff then turns around and
says he files for motion for summary judgment assuming theres
no facts, material facts, in question when, in fact, he wont
provide us any of the material fact we asked for from him.
So I just think its not at -- theres a reason we
have the timeline we do in court -- in courts -- in case
management and one is that the filed motions filed [phonetic sp]
have to be all filed after discoverys completed. This case
discovery is not yet completed as far as defendants receiving
from the plaintiff, so to me its just very open and shut.
THE COURT: Okay. I understand your --
MR. OSTRONIC: And if we go into the various elements
here first of all your honor, plaintiff has filed for a -- he
filed for malicious prosecution. Malicious prosecution, as you
know, is -- involves criminal prosecution only, its not
malicious use of civil process. Malicious prosecution in
Maryland generally means criminal prosecution. So -- and the
civil cases he mentions do not fit the element of the tort.
Further all, all he ever does is say conclusory
allegations that this was willful malice, et cetera. He
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provides no allegations as to specificity as to -- that the
cases were filed with malice, and that the cases were filed
without probable cause. As you know cases are often nolle
prossed, what have you, for a variety of reasons and its not
just because of absent of probable cause but there can be other
matters at then [phonetic sp].
Plaintiff has provided nothing, no court documents,
nothing that would back up his claim that these cases were
dismissed all -- solely in the plaintiffs favor only, and that
there were no -- there was no probable cause or what have you.
I mean the --
THE COURT: So that would --
MR. OSTRONIC: In other words, your honor, let me
write down [phonetic sp] malicious prosecution has four
elements.
THE COURT: Right.
MR. OSTRONIC: Criminal proceeding, yes. Defendant
against the plaintiff, yes, for two of the plaintiffs only.
Two of the defendants only, Mr. Hoge and Mr. Walker. Mr. Akbar
and Mr. McCain never filed any kind of proceeding --
THE COURT: Okay he only brought them against Walker
and Hoge.
MR. OSTRONIC: So counts 1 should -- but even though
he doesnt differentiate in his whole pleading, counts 1 should
go -- should be dismissed against Mr. Walker and Mr. -- I mean
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Mr. McCain and Mr. Akbar.
The third one though is Absence of Probable Cause for
the proceeding, and Malice or Primary Purpose in instituting the
proceeding other than that of bringing the defendant to justice.
Your honor, beyond the plaintiffs allegation in his
pleadings he has provided no -- nothing that supports that
element of the tort.
THE COURT: Okay so you want me to --
MR. OSTRONIC: What I would say is, your honor, he has
-- and -- at further I would say, your honor, in fact for all of
these counts, since plaintiff has not provided any discovery to
the defendant as he has acknowledged here, we should just take
it that the no material facts dispute here is that he has
nothing to provide for the purpose of this proceeding.
Therefore, there is no material fact -- theres no dispute of
the material fact that there is nothing there to support malice,
and theres nothing there to support absence of probable cause.
Therefore, absent those two elements here in the
malicious prosecution, that count should be dismissed.
THE COURT: All right.
MR. KIMBERLIN: And Id like to be heard on that,
obviously when --
THE COURT: Just be -- if you just be quiet, sir.
MR. KIMBERLIN: Okay.
THE COURT: All right, go ahead.
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MR. OSTRONIC: All right moving on to abuse of
process, this one fact yes I think a fairly simple one for us,
your honor. Because the tort of abuse of process requires that
the plaintiff establish that arrest of the person, or a seizure
of the property of the plaintiff, resulted from the abuse of
process. He has not alleged any arrest of a person or a seizure
of the property of the plaintiff, and he has to assert one of
those for this court to rest here in Maryland. I can quote case
law on that one too, your honor.
THE COURT: What count are we talking?
MR. OSTRONIC: Were counting count number 2 of the
conspiracy to abuse process.
THE COURT: Conspiracy to abuse process.
MR. OSTRONIC: Yes, your honor. There, if you go
right down the -- if you go down his count on his allegations
there --
THE COURT: I have it, go ahead. So, Im with you.
MR. OSTRONIC: Nothing in his allegation says that he
A, had an arrest of the person or B, had a seizure of the
property. And thats the necessary element for this tort to be
supported here in the State of Maryland. Therefore, without
that element the count has to fail.
THE COURT: By seizure of property?
MR. OSTRONIC: Yes, as far as conspiracy -- as far as
abuse of process yes, your honor. And I have relevant case law
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--
THE COURT: I thought the elements were you use the
process for something thats unintended for.
MR. OSTRONIC: Unintended by the law but in order for
the -- go to the tort it has to be supported by either a seizure
of property, or an arrest. And I can --
THE COURT: All right.
MR. OSTRONIC: I can provide case law on that one,
your honor.
THE COURT: Okay.
MR. KIMBERLIN: May I respond?
THE COURT: No sir, you cannot.
MR. KIMBERLIN: Okay.
THE COURT: I will at the end, not now.
MR. KIMBERLIN: Okay. All right.
THE COURT: Its not a back and forth roundtable
discussion.
MR. KIMBERLIN: All right.
THE COURT: Okay.
MR. OSTRONIC: So would you like to see some of the
case law, your honor, on that?
THE COURT: Sure.
MR. OSTRONIC: Okay I have first of all the Gem case,
which I know plaintiff is familiar with because he cited it. In
fact, your honor, I think if we go to his -- was it your motion
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that you supported that you testified in that one? Anyway the
case -- you remember the Gem case, right? The Gem v. Wesko,
case that you cited?
MR. KIMBERLIN: Yeah, uh-huh. Im going to cite it
again in a second.
MR. OSTRONIC: Very good. Okay. Okay, well this -- I
have [unintelligible] telling the judge --
MR. KIMBERLIN: Okay.
MR. OSTRONIC: -- after that one.
THE COURT: Show me the --
MR. OSTRONIC: This is -- the abuse of process, Im
sorry, Ive got the wrong case law.
THE COURT: All right. Sure, take your time.
MR. OSTRONIC: Thats malicious abuse of civil process
which shows that the abuse of process will come from -- can
borrows this [phonetic sp]. Courts indulgence, your honor. I
have a lot --
THE COURT: Sure.
MR. OSTRONIC: -- of files in front of me here. Abuse
of process here. Im sorry, this is the Lake Hallowell
Homeowners Association, a 2004 case which states that to
maintain a claim for abuse of process.
MR. KIMBERLIN: Okay.
MR. OSTRONIC: A 2004 case, your honor.
THE COURT: All right this is Lake Hallowell
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Homeowners Association, et al. on Campbell v. that Lake
Hallowell Homeowners Association, and thats at 157 Maryland
app. 504. And the language here Im directed to is, The tort
of abuse of process is connected with the improper use of civil
or criminal process in a manner not contemplated by law after it
has been issued. However, to maintain a claim for abuse of
process the plaintiff must allege that he was unlawfully
arrested, or his property unlawfully seized. The injuries
contemplated by this particular tort and an indispensable
element of it are limited to an improper arrest of the person,
or an improper seizure of property.
MR. OSTRONIC: Thats abuse of process, your honor.
And the plaintiff never alleged either that element in his
pleadings.
THE COURT: All right Ill let you address that real
briefly. But dont tell me about other suits that are pending,
just tell me -- address that one issue. Youre pleadings --
MR. KIMBERLIN: Ill -- okay.
THE COURT: -- dont have that.
MR. KIMBERLIN: Well one of the things that counsel is
forgetting is that this count is not a count for abuse of
process; its a count for conspiracy to abuse process.
In a conspiracy you dont have to show that the act
was committed, you have to say that they conspired to do it.
Thats what this is alleging. I was very careful in my pleading
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to -- I knew that I couldnt show abuse of process because I
hadnt been arrested. It wasnt for the lack of them trying.
They filed case after case after case to have me arrested for
rape, for sexual abuse, for harassment, for perjury --
THE COURT: Do you have a case law on conspiracy to --
MR. OSTRONIC: I do actually --
THE COURT: -- commit abuse of process?
MR. KIMBERLIN: Well I would think that, you know, if
a bunch of people conspired to have somebody arrested --
THE COURT: Conspiracy generally deals in the -- would
deal within the criminal law.
MR. KIMBERLIN: I understand but theyre civil
conspiracies too, and thats what Im alleging here. I mean it
-- you have to have the concerted action, you have to have the
overt act. You know, we have that. We have to have the meeting
of the minds; we have that here.
And so thats why I was very, very careful to not
allege abuse of process. Its conspiracy and I think this is a
jury question, it should be -- it should go to a jury and let
them decide whether these guys, Mr. Hoge and Mr. Walker were the
point man to file the charges, and Mr. McCain and all the -- and
the others, were the ones that went out and amplified this on
the internet to destroy my reputation. Thats what --
THE COURT: All right.
MR. KIMBERLIN: -- this is all about.
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THE COURT: Okay.
MR. OSTRONIC: Your honor, I do have case law.
THE COURT: Let him respond then you can have --
MR. KIMBERLIN: Okay.
THE COURT: -- a seat.
MR. KIMBERLIN: Thanks.
MR. OSTRONIC: Your honor, I do have case law that
addresses the fact that, in a conspiracy --
THE COURT: Right.
MR. OSTRONIC: -- and this is directly on point. This
is actually a 2014 case, your honor.
THE COURT: Go ahead.
MR. OSTRONIC: And it goes actually to commit --
conspiracy to commit malicious use of process, and the court
noted that no action tort lies for conspiracy to do something
unless the act actually done, if done by one person, would
constitute a tort. So the actual -- if every -- everything he
alleged for abuse of process is done by one person, it would
still not rise to the level of abuse of process for the State of
Maryland. Therefore, you cant have a conspiracy to commit if
it was never done.
THE COURT: Youre saying theyd have to --
MR. OSTRONIC: You take all the actions that hes
alleging if you assign it to one person that would have to be
enough to support the tort of abuse of process. Since it isnt
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you cant then say well there was conspiracy to do so. And I --
MR. KIMBERLIN: My --
MR. OSTRONIC: -- have direct case law of 2014 here
right in front of you.
MR. KIMBERLIN: And my response to that, your honor,
is that --
THE COURT: This is your last response and then were
going to move on to the next count.
MR. KIMBERLIN: Okay.
MR. OSTRONIC: Thank you.
THE COURT: Quickly.
MR. KIMBERLIN: In the Wesko v. Gem, Inc. case, which
is a Maryland case, you have to have the institution of civil
process, or proceedings without probable cause with malice. I
think weve shown malice here, these guys want to have me
arrested for anything they can do. That the proceedings were
terminated in plaintiffs favor and that damages were inflicted
on the plaintiff by the seizure of his property, or other
special injury.
I think that Ive shown injury, some special injury,
you know, by being --
THE COURT: All right.
MR. KIMBERLIN: -- subject to a two-year campaign of
personal destruction.
MR. OSTRONIC: Objection, your honor.
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THE COURT: Sustained. All right, you can have a
seat. I may -- I also see in the -- cited in the -- of Campbell
v. Lake Hallowell, they cite Herring v. Citizens Bank and Trust,
21 Maryland app. 517, 1974 case. The mere issuance of the
process itself, however, is not actionable even if its done
with an ulterior motive or bad intention. I know theyre
talking about the abuse of process.
I side with the defense and I will grant the motion
to, for summary judgment, on count 2 with respect to looks like
McCain, Hoge, Walker, and Ali Akbar.
MR. OSTRONIC: Yes, your honor.
THE COURT: Okay. Lets move on to the next count.
The next one I have is Defamation, count 3.
MR. OSTRONIC: Yes, your honor. Defamation, as you
know, carries -- has to show that the defendants made a
defamatory statement, the statement was false, that the
statement -- and that we were legally at fault in making a
statement, and that the plaintiff, therefore -- thereby suffered
harm.
But, again, if you read the plaintiffs complaint we
have --
THE COURT: Im there.
MR. OSTRONIC: We have no notice as to, he says
generally that statements were defamatory. He does nothing --
he does not show any statements that were made and that were
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knowingly false. In fact, he hasnt shown anything that was
false. Hes just said theyre defamatory and hoping that thats
good enough to get by, but it should not be. He --
THE COURT: So youre saying that the pleading is
deficient, and then youre saying since he hasnt filed an
answer to discovery then theres nothing --
MR. OSTRONIC: Theres nothing --
THE COURT: -- for summary --
MR. OSTRONIC: Theres nothing for you right now to
look at and say, yes, thats defamatory --
THE COURT: Right.
MR. OSTRONIC: -- in his pleading, anywhere.
THE COURT: I agree.
MR. OSTRONIC: So then --
THE COURT: Would that be a motion to dismiss or a
motion for summary judgment?
MR. OSTRONIC: We tried for motion to dismiss and they
just -- they didnt go for that initially. That was a long time
ago before discovery, your honor.
THE COURT: But whats changed now because youve
received nothing to supplement this?
MR. OSTRONIC: Ive got nothing so Ill -- I mean I
would alter it to motion to dismiss.
THE COURT: Well Im not going to --
MR. OSTRONIC: Or a motion summary judgment only
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because he has not met the allegations of the tort, the elements
of the tort here. So --
THE COURT: Okay.
MR. OSTRONIC: -- a motion of summary judgment would
certainly be appropriate, because he has not supported any of
his elements, quite frankly.
THE COURT: All right. You want to respond to that,
Mr. --
MR. KIMBERLIN: Oh sure. As I mentioned before --
THE COURT: -- Kimberlin.
MR. KIMBERLIN: -- Judge Burrells already found -- I
mean she saw all the evidence and I can present it again here,
if you would like.
THE COURT: Yeah that was on the sufficiency of the
pleading.
MR. KIMBERLIN: It -- no its --
THE COURT: Im not going to revisit that.
MR. KIMBERLIN: Yeah it was on the motion to dismiss.
But there was a finding --
THE COURT: Were at summary judgment and you supplied
nothing to the defense. Theres --
MR. KIMBERLIN: I did --
THE COURT: -- nothing to supplement this.
MR. KIMBERLIN: I did supply things to the defense. I
told them that theres literally --
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THE COURT: Did you properly answer motion
interrogatories or admissions of fact?
MR. KIMBERLIN: I did answer the admissions. I did
answer the production of documents. The --
THE COURT: I thought you told me you didnt answer
those.
MR. KIMBERLIN: No I --
MR. OSTRONIC: He said he had no documents.
MR. KIMBERLIN: No I said that Ive answered them or
Ive objected to them. They havent come in and said --
THE COURT: Well objecting is not answering them.
MR. KIMBERLIN: Well but if they want me to get the
court to compel me to answer those, they need to come in and say
how those things are relevant to this case. You know, if
theyre asking me about the stuff that has no relevance to this
case and I object --
THE COURT: Did you file motion for a protective
order?
MR. KIMBERLIN: Yes.
MR. OSTRONIC: Not timely, your honor.
MR. KIMBERLIN: I did file --
MR. OSTRONIC: He filed it about a month after we
asked for sanctions. And we asked for sanctions right after the
-- after discovery ended and plaintiff indicated he would not be
providing any documents, or -- and any answers to any
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interrogatories. We then filed for immediate sanctions and
about a month later plaintiff then filed a protective order on
some of the questions, not all of them.
THE COURT: Yeah you filed it on May 23rd, 2014.
MR. OSTRONIC: Right.
MR. KIMBERLIN: I -- you know but I did object, in my
answers to the discovery --
MR. OSTRONIC: He objected to --
MR. KIMBERLIN: -- to the production of documents, and
he did not come in with a motion to compel.
MR. OSTRONIC: I asked for --
MR. KIMBERLIN: He asked for a motion for sanctions,
which hes asking for dismissal basically. And if he wants to
compel me to try to answer those questions, he is required to --
THE COURT: All right --
MR. KIMBERLIN: -- come in and say its relevant.
THE COURT: Lets move on. Count 4. Well come back
to 3 for a ruling but not this second [phonetic sp]. Count 4 is
the false light invasion of privacy. Mr. Kimberlin, you can
have a seat. Ill let --
MR. OSTRONIC: In false light your honor, as you know,
is basically it makes the same elements as defamation. And
again, plaintiff has not provided us anything with specificity,
nor has he proven, or alleged even, the --
THE COURT: So theyll sink or swim together is your
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argument.
MR. OSTRONIC: They should, your honor, yes.
THE COURT: All right lets move on to --
MR. OSTRONIC: The last one left and your honor is on
-- I mean Im assuming we still -- we skipped by malicious
prosecution, or did you rule on that one? Which was the first
count.
THE COURT: I grant the conspiracy abuse of process,
which was count 2.
MR. OSTRONIC: Two, right.
THE COURT: We did 5 and 7 early on.
MR. OSTRONIC: Yes, your honor.
THE COURT: One was malicious prosecution.
MR. OSTRONIC: And there I argued, your honor, he did
not allege with specificity the -- all the elements of the tort.
In fact, he never really lays out all the elements of the tort.
THE COURT: All right Ill --
MR. OSTRONIC: Malicious prosecution should just be
criminal prosecution.
THE COURT: Ill come back to that as well.
MR. OSTRONIC: Okay, your honor.
THE COURT: All right so then that leaves count 6.
MR. OSTRONIC: Six.
THE COURT: Right?
MR. OSTRONIC: Which is the intentional affliction of
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emotional distress. And, of course, just to review the elements
here the conduct must be intentional reckless, the conduct must
be extremely outrageous, there must be a causal -- casual
connection between the wrongful conduct and the emotional
distress, and the emotional distress must be severe.
But in order for there -- and part of the element of
this -- that the -- we have -- you have to have some kind of
manifestation of the emotional distress. Nowhere in plaintiffs
pleadings did he ever tell us what the manifestation of that
was. There is no way then for a jury, or anyone quite frankly,
to say yes the emotional distress was severe because A, B, and C
and this is how we know it was there. Beyond his allegation
that there was emotional distress we have nothing else to go on,
your honor.
THE COURT: Plus we were looking at some cases
yesterday on this issue. Apparently the Court of Appeals has
only approved potential infliction of --
MR. OSTRONIC: Its a very, very --
THE COURT: -- emotional distress four times.
MR. OSTRONIC: Its a very, very, very rare -- I mean
its got to be the emotional distress has to be so severe that
its just beyond pale [phonetic sp]. And nothing the plaintiff
has alleged even comes close to that, your honor.
THE COURT: Okay.
MR. KIMBERLIN: And --
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THE COURT: Do you want to respond to that briefly,
Mr. Kimberlin?
MR. KIMBERLIN: Sure. I mean I cited Womack v.
Eldridge. In that case it was kind of a similar allegation
where the plaintiff was accused of molesting boys, and the court
found that this met the test for infliction of emotional
distress. In my case Ive been accused of pedophilia over and
over and over and over, and murder, and rape, and spousal abuse,
and all kinds of things, all which are untrue. And its caused
a lot of emotional distress at home with my daughters, with my
wife, with friends, with -- I mean if you cant -- if thats not
shocking the conscience, you know, because the court said most
of the courts have been presented with the question in recent
years of how there may be recovery against one who, by his
extreme and outrageous conduct, intentionally recklessly causes
another severe emotional distress.
In my case, how could -- Ive been under siege trying
to be arrested, you know, having cops come to my door in the
middle of the night. And having to go down to -- every week or
month to court hearings or States Attorneys to answer stuff, to
have the FBI showing up at my wifes house, having my daughter
come home crying, having parents that are with my daughters
friends saying they cant sleep overnight because their -- my --
their father is a pedophile. You know, this is all -- I mean
how much emotional distress do I have to have? I mean that
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anybody on earth would say thats emotional distress. And Im
going to present that at trial. My daughters going to testify,
shes going to get up on that stand and shes going to cry, and
shes going to say that my friends cant even spend the night at
my house because these guys have told their parents that Im a
pedophile. That I have pornography all over my house. That
theres no privacy in the house and I watch them naked. Its
all a lie. And, of course, its emotional distress. Im pretty
cool about handling it, you know, but its emotional distress
every single day my wife deals with it, my kids deal with it,
the school deals with it. Colleges at schools deal with it, you
know. Ive had bullying. My daughter just has to leave her --
the latest school, the second school that shes been to because
of bullying. Shes got to go to a third school. How many kids
have to do that --
MR. OSTRONIC: Your honor, please hes testifying --
MR. KIMBERLIN: -- because of bullying?
MR. OSTRONIC: -- again.
MR. KIMBERLIN: Its emotional distress.
THE COURT: All right, Ill sustain that. All right.
MR. OSTRONIC: Your honor, if I could just point out
though that the case he cited was, first of all, a Virginia
case, and I would prefer to look at Maryland cases here.
Maryland very much requires a manifestation of the mental
anguish produced. In fact, that was this last year in the case
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of Exxon Mobile Corp, v. Albright decided by our Court of
Appeals, our focus -- they say our focus, thus, is properly on
the evidence of mental anguish produced. Hes produced nothing.
Second of all, they also take note that the evidence
must be detailed enough to give jury a basis upon which to
quantify the entry. Second, a claim of emotional injury is less
likely to seed [phonetic sp] if the victim is the sole source of
all evidence of emotional injury.
And in this case he wont be able to testify as to his
emotional injury. So he wont even have that much to go with,
your honor. Weve -- again, weve had no specificity as to the
mental anguish, any manifestation of it. He, thus, does not
meet all the elements of the emotional distress tort.
THE COURT: All right.
MR. KIMBERLIN: Your honor, may I --
THE COURT: Im going to take a short recess. Ill
come back and then Ill decide.
MR. OSTRONIC: Thank you, your honor.
THE COURT: So were still dealing with counts 1, 3,
4, and 6.
MR. OSTRONIC: Six. Yes, your honor.
MR. KIMBERLIN: Your honor, may I say one more thing?
THE COURT: One more thing.
MR. KIMBERLIN: These defendants created all these
documents, whether they were false filings in courts, or
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defamatory filings, or posts, or statements, or articles, or
tweets online. They have all this evidence. Ive told them
that. They want me to reproduce thousands and thousands and
thousands and thousands of documents and give them to them,
which theyve already created?
THE COURT: Mr. Kimberlin, I cant --
MR. OSTRONIC: Your --
THE COURT: -- understand whether or not youve
produced anything, or you havent. One time you tell me youve
given them everything, then you say well you havent given them
anything because they dont want it under oath. Have you given
them anything?
MR. KIMBERLIN: I answered all the admissions. They
sent me a set of admissions I answered all of them. They sent
me a set of production of documents I said I either dont have
those documents, there are no such documents, or Im objecting
for specific reasons whether its spousal privilege or--
THE COURT: You didnt give them any documents on all
these lawsuits --
MR. KIMBERLIN: But, but --
THE COURT: Hang on. Sir, we cant talk over each
other.
MR. KIMBERLIN: Uh-huh.
THE COURT: You didnt give them any documents on all
these lawsuits that have been filed against you. All of the
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publications that have been attacking your -- all the defamatory
statements, all the criminal prosecutions that theyve -- hang
on. All the criminal prosecutions that they have initiated,
youve given them no evidence of that, of any documents, or any
records on that at all, is that what Im hearing?
MR. KIMBERLIN: No, what youre hearing is I said that
they --
THE COURT: No thats not right at all then youve
given them all that.
MR. KIMBERLIN: They have it. I told him the other
day I will make you --
THE COURT: They have what?
MR. KIMBERLIN: They created the documents. Im
saying --
THE COURT: No sir, youre the plaintiff you --
MR. KIMBERLIN: Okay.
THE COURT: -- have a duty to --
MR. KIMBERLIN: The other --
THE COURT: -- give them.
MR. KIMBERLIN: Last week I sent him an email and Ill
-- I think hell agree to this --
THE COURT: Have you given him --
MR. KIMBERLIN: -- I said --
THE COURT: -- those documents --
MR. KIMBERLIN: -- I said --
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THE COURT: -- on all of these actions, all of these
pleadings, all of these tweets, have you given him copies of all
of those things?
MR. KIMBERLIN: I have all of those and I --
THE COURT: No I didnt ask you if you had them.
MR. KIMBERLIN: I have not given them to --
THE COURT: Mr. Kimberlin?
MR. KIMBERLIN: I have not given --
THE COURT: Mr. Kimberlin? Have you given them copies
of those documents that substantiate your claims?
MR. KIMBERLIN: I have not to date. I told him last
week that I would give him a list, because were talking
thousands and thousands, maybe 20,000 --
THE COURT: Okay, the answer is no. I dont want the
defense I just want to know if youve given it.
MR. KIMBERLIN: I just --
THE COURT: Have you?
MR. KIMBERLIN: I am willing and I told him this. Im
willing to give him --
THE COURT: Have you answered his interrogatories?
MR. KIMBERLIN: I have not answered his --
THE COURT: Okay.
MR. KIMBERLIN: -- interrogatories because he asked me
to do so under oath.
THE COURT: Okay.
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MR. KIMBERLIN: I said that I would answer them --
THE COURT: All right.
MR. KIMBERLIN: -- if that issue --
THE COURT: I understand --
MR. KIMBERLIN: -- is dealt with.
THE COURT: Mr. Kimberlin, have a seat for a second.
MR. KIMBERLIN: Okay.
THE COURT: What about the issue, counsel, with
respect to his answering interrogatories under oath?
MR. OSTRONIC: Your honor, Ill just point out simply
that interrogatories are not testimony. Therefore, its a very
appropriate for him to file, under oath, it all has to do with
lead to admissible evidence. I can -- its not testimony in and
of itself. The Maryland law says he cannot testify --
THE COURT: Testify.
MR. OSTRONIC: -- as a convicted perjury. Thats all
it says.
THE COURT: Gotcha.
MR. OSTRONIC: It doesnt say he cant answer under
oath or submit anything under oath --
THE COURT: All right.
MR. OSTRONIC: -- for interrogatories.
THE COURT: And youve got --
MR. KIMBERLIN: I --
THE COURT: Mr. Kimberlin, be patient. So you havent
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got any answers to the --
MR. OSTRONIC: No, your honor. Three --
THE COURT: All right.
MR. OSTRONIC: -- of the defendants submitted 30
questions each of which, I will also point out, your honor, that
each one of them opened up with four of the standard
interrogatories, of which there really can be no objection to at
all, and theres no excuse for not answering those.
THE COURT: Now -- okay. So what youre saying is
judge, he hasnt given me any of this. The motions are right
because this is all we have.
MR. OSTRONIC: This is all anybody has.
THE COURT: We have a bare bone pleading --
MR. OSTRONIC: This is all youre going to see, this
is all I have, this is all hes provided.
THE COURT: Barebones pleading and the pleadings are
insufficient.
MR. OSTRONIC: Yes, your honor.
THE COURT: On the remaining counts.
MR. OSTRONIC: Yes, your honor.
MR. KIMBERLIN: And --
THE COURT: And the plaintiff is saying I havent
given you those documents because theres too many. Thats what
Im kind of hearing.
MR. OSTRONIC: Your honor --
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THE COURT: Right, Mr. Kimberlin?
MR. KIMBERLIN: Well I filed for a protective order.
And I said, number one --
THE COURT: Your brought the action, sir.
MR. KIMBERLIN: I know. Im saying protective order
for -- against discovery.
THE COURT: What are you trying to protect?
MR. KIMBERLIN: Against --
THE COURT: Youre saying that this is the most
outrageous thing in the world, all of these tweets daily,
threaten you, saying that youre a rapist, youre a pedophile,
youre a perjurer, youre this --
MR. KIMBERLIN: Yes.
THE COURT: -- youre worse than Al Capone.
MR. KIMBERLIN: Yes.
THE COURT: And yet you offer no proof of all of this
defamatory documents to the defendant.
MR. KIMBERLIN: Your honor --
THE COURT: And you want him to go to trial and just
have you stand up and tell the jury that youve gotten all those
things out there, and you think thats going to be sufficient?
MR. KIMBERLIN: No, your honor. Last week I offered
to give him an entire list. I dont know if he wants to have
20,000 pages, me to go home and copy 20,000 pages --
THE COURT: Its not a question of offering its a
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question of giving --
MR. KIMBERLIN: Okay.
THE COURT: -- and you didnt do it and the --
MR. KIMBERLIN: I --
THE COURT: -- discovery is -- how long has the
discovery been outstanding?
MR. KIMBERLIN: Ive asked --
MR. OSTRONIC: Two months at least, your honor.
MR. KIMBERLIN: I -- you know I asked him for --
MR. OSTRONIC: He -- the discovery was due April 28th,
I believe.
THE COURT: Its Mr. --
MR. OSTRONIC: Ostronic yes, your honor.
THE COURT: Ostronic. Its been outstanding for --
when was it due?
MR. OSTRONIC: April 28th.
THE COURT: Of 2014.
MR. OSTRONIC: 2014.
THE COURT: May, June -- so over two months.
MR. OSTRONIC: Your honor, thats why in fact when we
get later on to the motion for immediate sanctions that was
filed on May 2nd so thats about two months old. And even
there, you know, plaintiff knows about this. He knows what the
case law is on this one its fairly straight forward. And Im
not in a position to negotiate with him. Im not going to
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negotiate with him on the law or --
THE COURT: No you shouldnt have to.
MR. OSTRONIC: -- rules.
MR. KIMBERLIN: Your honor, first of all the
defendants have not given me any discovery, except one email. I
filed for interrogatories with them, they havent complied.
THE COURT: Who filed first?
MR. OSTRONIC: Whoa, whoa, whoa, whoa, whoa, whoa,
whoa, whoa, your honor.
MR. KIMBERLIN: Hello?
MR. OSTRONIC: Your honor, all the interrogatories
were properly filed back to plaintiff on a timely basis. He
waited for 30 days, he filed then for -- because we objected to
some. Our objections were always very detailed, et cetera.
Then you filed for motion to compel and what happened? Judge
Rubin dismissed it because it was not a timely filed objection,
your honor.
THE COURT: Okay.
MR. OSTRONIC: He -- all our interrogatory --
everything we -- hes asked for us we have given him.
THE COURT: Gotcha. All right, let me take a short --
MR. OSTRONIC: And we should not get to file a motion
for -- I did have a certificate of service filed with the court
--
THE COURT: All right.
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MR. OSTRONIC: -- on a timely basis on that regard
too.
MR. KIMBERLIN: Your honor --
THE COURT: All right well come back at 12:00, about
a five-minute recess.
MR. OSTRONIC: Okay, your honor.
THE COURT: And give the decision.
MR. OSTRONIC: Thank you, your honor.
THE COURT: All right, youre welcome.
THE BAILIFF: All rise.
THE CLERK: Court stands in recess.
(Recess.)
THE COURT: Okay everybody, were back on the record.
THE CLERK: Back on the record in Civil 380966, Brett
Kimberlin v. Aaron Walker, et al.
THE COURT: Okay the court is going to grant the
defendants motion on summary judgment on count 1, Malicious
prosecution. And count 6, emotional -- intentional affliction
of emotional distress.
The court will deny the defendants motion for summary
judgment on count 2 -- excuse me, on count 3, defamation. And
count 4, invasion --
MR. OSTRONIC: Off my --
THE COURT: -- of privacy.
MR. OSTRONIC: Okay.
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THE COURT: Counts 3 and 4 will remain. Those are
your big-ticket items in the sense that youre saying youre
defamed invasion of privacy.
However, and this is what Im going to do Im going to
also grant -- Ill grant the defendants motion for sanctions on
the violation of discovery. And Ill give the plaintiff 30 days
within to -- within which to fully answer the interrogatories,
and the production -- and motions for production of documents.
MR. OSTRONIC: Excuse me, your honor --
THE COURT: If those items -- if thats not
satisfactorily produced, the defendant will be -- the plaintiff
would be precluded from offering any documents at trial, or
offering any evidence orally from some other witness thats
directly on point with the interrogatories.
Now it might just be after 30 days that the defense
then will re-file another motion for summary judgment on the
remaining two counts, depending on what he gets. But were not
there yet.
You had a question first?
MR. OSTRONIC: Yes, your honor, we have a trial date
set for August 11th.
THE COURT: All right where are we now? July 1st.
MR. OSTRONIC: 1st, so 30 days would put us into the
first week of August.
THE COURT: All right since hes had so much time wed
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better not make it 30 days.
MR. OSTRONIC: I asked for seven days, your honor.
Hes had plenty of time to do that. I dont -- I see no reason
why he cant.
MR. KIMBERLIN: And --
THE COURT: Hold on, sir. Seven days, today is the
1st. So youre saying basically by Tuesday, the 8th?
MR. OSTRONIC: Yes, your honor.
THE COURT: Yes, Mr. Kimberlin?
MR. KIMBERLIN: Two weeks, I think, is good.
THE COURT: Whens your trial date?
MR. OSTRONIC: August 11th, your honor. And my -- I
say the latter part of July, your honor, Im traveling. I have
to go overseas for work. Therefore, I need the stuff now to
prepare for trial so I can have a fighting chance at this.
MR. KIMBERLIN: Okay lets go with July --
THE COURT: How about the 10th?
MR. KIMBERLIN: Yeah.
MR. OSTRONIC: Your honor, this is not -- this should
not be a negotiation with him.
THE COURT: I know.
MR. OSTRONIC: I mean its just --
THE COURT: How about the 10th?
MR. KIMBERLIN: The 10th, Ill get him --
THE COURT: All right Ill make it by 10th at noon.
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MR. OSTRONIC: Okay.
THE COURT: All discovery must be completed by the
plaintiff and delivered to the defendant.
MR. OSTRONIC: And, your honor, that means that he has
to answer --
THE COURT: By noon on the 10th of July. That means
hes got to answer to all the interrogatories and provide all
the documents that have been requested.
MR. KIMBERLIN: And if I -- if theres something
objectionable or in violation of privilege, or something like
that I think I should be able to make that --
THE COURT: All right.
MR. KIMBERLIN: -- issue.
MR. OSTRONIC: Your honor, can --
THE COURT: You run the risk, sir, of having the other
counts dismissed or youre not being able to offer evidence.
Now -- at trial. Now you also know that the law is clear, you
cant testify if you have a conviction for perjury. However,
your answers to interrogatories should -- need to be under oath,
thats what the rules require.
MR. KIMBERLIN: Right.
THE COURT: So youre going to have to, since youre
representing yourself, youre just going to have to worry about
your -- how youre going to present your evidence at trial.
MR. KIMBERLIN: Can I get a -- I mean thats why Ive
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asked for a ruling on that, because I dont believe under
another --
THE COURT: Thats not before me on a ruling but the
laws pretty clear on the perjuring.
MR. KIMBERLIN: Well but it also -- theres another
law that says that convictions more than 15 years old are not --
are inadmissible.
THE COURT: Thats for impeachment purposes. Theres
no deadline on the perjury but you can make that argument to the
trial judge.
MR. KIMBERLIN: And --
THE COURT: Im not going to get into anything else so
does that cover everything for today?
MR. OSTRONIC: Your honor, the only last thing that he
asked for a protective order on, and on the inception date
[phonetic sp], I just want to make a point here, your honor that
he has by not objecting on a timely manner he has forgone the
right to object to the interrogatories. If he provides us, on
July 10th, with a bunch of objections to the interrogatories --
THE COURT: Yeah.
MR. OSTRONIC: -- then were back where we started
from because --
THE COURT: If he doesnt supply that then hes going
to -- court will take -- well I will impose sanctions and
preclude him from offering any documents at trial.
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MR. OSTRONIC: Okay, your honor. Well unless --
THE COURT: Other than what hes given to you.
MR. OSTRONIC: But the other thing is, your honor, we
asked for a lot of questions and thats supposed to lead to
admissible evidence, and were having a hard time with that
right now.
THE COURT: Yeah, the --
MR. KIMBERLIN: Well --
THE COURT: -- court will look unfavorably upon the
plaintiff offering evidence which should have been answered in
the interrogatories --
MR. KIMBERLIN: All right.
THE COURT: -- that wasnt given to the defendant.
Thats about all I can say. I cant make a blanket ruling --
MR. OSTRONIC: Okay, your honor. But we have open if
he --
THE COURT: For example, lets say you ask him what
his first Dalmatian dogs first name was, and he doesnt give it
to you. Im not going to --
MR. OSTRONIC: I understand.
THE COURT: -- say he cant --
MR. OSTRONIC: I understand, your honor.
THE COURT: -- offer a witness in the case.
MR. OSTRONIC: Okay.
THE COURT: You see what Im saying?
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MR. KIMBERLIN: Well and thats what I was asking
because theyre -- a lot of the --
THE COURT: Yeah, I dont think youre in a position
of strength at this point, Mr. Kimberlin.
MR. KIMBERLIN: No but --
THE COURT: You havent given them anything. I
wouldnt be worrying about what you dont have to answer. I
would answer everything under the moon --
MR. KIMBERLIN: Right.
THE COURT: -- if it were me.
MR. KIMBERLIN: I had another question. You had said
--
THE COURT: Are we okay on the motions?
MR. KIMBERLIN: You said --
THE COURT: So the motions -- all this discovery will
be granted?
THE CLERK: Yes, your honor.
THE COURT: All right.
MR. KIMBERLIN: He --
THE CLERK: As of 4/7/10 [phonetic sp].
THE COURT: Right.
MR. KIMBERLIN: You said --
THE CLERK: The motion for protective order, your
honor? Is that --
THE COURT: File the motion for protective order.
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MR. OSTRONIC: He did, your honor.
THE COURT: Denied.
THE CLERK: Denied.
MR. KIMBERLIN: Okay, the -- you said on count 1 and
count 6, theyre dismissed but I think you meant count 2 and
count 6.
MR. OSTRONIC: No he meant 1, 2, and -- he already
denied -- you already denied --
THE COURT: I already granted -- denied 2.
MR. KIMBERLIN: Okay.
MR. OSTRONIC: He denied 2 --
THE COURT: Or -- already dismissed 2.
MR. OSTRONIC: Yes.
THE COURT: Thats what I meant to say. So the ones
that are alive are your defamation, which is the one that you
contend has brought the whole world down on you, and thats --
youll have your day in court on that. And your invasion of
privacy.
MR. KIMBERLIN: Okay.
MR. OSTRONIC: Thats right yes, your honor.
THE COURT: All right, thank you gentlemen. Good luck
and --
MR. KIMBERLIN: Thank you.
THE COURT: -- well stand in recess until 1:30.
THE BAILIFF: All rise.
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THE CLERK: Court stands in recess.
MR. OSTRONIC: Thank you, your honor.
(The proceedings were concluded)






















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X Digitally signed by Marina Holland
Digitally signed certificate
NATIONAL CAPITOL CONTRACTING, LLC hereby certifies
that the foregoing pages represent an accurate transcript of the
duplicated electronic sound recording of the proceedings in the
Circuit Court for Montgomery County, in the matter of:
Civil No. 380966
BRETT KIMBERLIN
v.
AARON WALKER, ET AL.



By:


________ _____
Transcriber