MARYLAND

:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

BRETT KIMBERLIN,
Plaintiff
v.

Case No. 403868V

NATIONAL BLOGGERS CLUB, ET AL.,
Defendants

DEFENDANT WALKER’S MOTION TO DISMISS THE FIRST AMENDED
COMPLAINT AND REQUEST FOR A HEARING
NOW COMES Defendant Aaron J. Walker, Esq., and moves to dismiss the Plaintiff’s
First Amended Complaint (“FAC”) with prejudice because the Plaintiff has failed to state a claim
for which relief can be granted under Md. R. 2-322(b)(2). Mr. Walker requests that such
dismissal be granted with prejudice, without leave to amend, and for a hearing as soon as
practicable. In support of this motion, he states the following:
INTRODUCTION AND SUMMARY OF ARGUMENT
On this fourth attempt to amend his complaint—including the two attempts in federal
court—the Plaintiff has proven he cannot make out a claim for which relief can be granted
against Mr. Walker. Indeed, this Court made findings in the September 3, 2015, motion hearing
(“Motion Hearing”) that exposed weaknesses in the Plaintiff’s argument against Mr. Walker
which the Plaintiff has failed to address in his FAC. Specifically, this Court adopted the
memoranda supporting the motions to dismiss presented by Breitbart (Dkt. No. 46) (“Brietbart
Memo”), Malkin and Twitchy (Dkt. No. 44) (“Malkin Memo”), and Glenn Beck, Mercury Radio

Arts and the Blaze (Dkt. No. 49) (“Blaze Memo”) as the opinion of this Court with only three
exceptions. Those exceptions are that 1) the Court did not believe that the shorter statute of
limitations of one year should apply, 2) that the Court could not determine that Mr. Kimberlin
was a public figure (based on the filings made at that time) and 3) the Court could not accept
based on those filings that Mr. Kimberlin filed this suit in bad faith and, therefore, the Maryland
SLAPP statute could not apply.1 Aside from those three exceptions, those three memoranda can
be treated as the opinion of this Court and the law of this case.
Thus, to a significant degree this Court has already ruled that the Plaintiff’s claims fail
against Mr. Walker. It ruled that false light claims fail because the Plaintiff is defamation-proof
and because the statements at issue would not be seriously offensive to an ordinary reasonable
person in the Plaintiff’s position. It ruled that as a matter of law there can be no interference
with the Plaintiff’s relationship with his own company, and this Court ruled that the Plaintiff
failed to allege interference with his music business on terms that apply equally to Mr. Walker.
Finally, this Court ruled that defamation or even a conspiracy to harass is not sufficient to make
out a claim for Intentional Infliction of Emotional Distress.
In addition to those failings already noted by this Court, the Plaintiff’s claims for false
light continues to lack specificity even after this Court told him what he must plead. In relation
to publication of private facts, the Plaintiff fails to allege that Mr. Walker discussed anything that
was either private or a fact. In relation to intrusion into seclusion, the Plaintiff fails to allege any
wrongful intrusion or that such intrusion was into private matters. Meanwhile, the Plaintiff fails
to allege that his name has any value, that Mr. Walker has taken advantage of his “good” name or
any non-incidental use of that likeness as is necessary to maintain a claim for appropriation of
Mr. Walker also raises these objections not to challenge this Court’s ruling—it is the law of this
case after all—but to preserve the objection for appeal.
1

2

name or likeness. Likewise, the statute of limitations for battery has expired. Moreover, the
Plaintiff has failed to allege that he has felt any emotional distress or has shown any physical
manifestation of that distress, in addition to the failings this Court has already noted. Finally, the
Plaintiff has made no non-conclusory allegation of conspiracy. For these reasons, the FAC
should be dismissed with prejudice and without leave to amend.
I.
THE PLAINTIFF FAILS TO PROPERLY PLEAD FALSE LIGHT
Under Maryland Law, the elements of false light invasion of privacy are defined as
follows:
One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion of
his privacy, if
(a) the false light in which the other person was placed would be highly
offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other would
be placed.
Bagwell v. Peninsula Regional Medical, 106 Md.App. 470, 513-514 (1995).
First, this Court has already ruled that the Plaintiff is defamation-proof by adopting the
Malkin Memo, including this passage: “Kimberlin’s claim also could be dismissed because he is
libel-proof: his record is so odious that, as a matter of law, his reputation cannot be damaged
further.” Malkin Memo p. 7, n. 2. On a similar note, the Restatement requires that the false light
be offensive to a reasonable person in the Plaintiff’s position, the Malkin Memo stating that this
cause of action
…applies only when the defendant knows that the plaintiff, as a reasonable man,
would be justified in the eyes of the community in feeling seriously offended and
aggrieved by the publicity….It is only when there is such a major
misrepresentation of his character, history, activities or beliefs that serious offense
3

may reasonably be expected to be taken by a reasonable man in his position, that
there is a cause of action for invasion of privacy.
p. 7 (emphasis in memorandum); see also Breitbart Memo p. 9. The Plaintiff would have this
Court believe that an ordinary reasonable person in the Plaintiff’s position would say, “Sure, I am
a convicted terrorist who bombed a town for nearly a week, 2 caused another person to lose his
life,3 cheated that man’s widow out of the money owed to her because I widowed and injured
her,4 my conduct becoming so outrageous that my parole was revoked as a result, 5 and I was a
notorious drug dealer,6 but I am seriously offended that someone imputed that I was a SWATter!”
As noted in the Blaze Memo p. 21-22 (and adopted by this Court):
allegations that Kimberlin engaged in “swatting” pale in comparison to being held
criminally responsible in a court of law for the serious injury of two victims of the
Speedway Bombings (and civilly responsible for the death of one)[.]
So even if the Plaintiff met every other element of false light, these two rulings by this Court are
sufficient to defeat his claim. His claim fails as a matter of the law of this case.
Even without these prior rulings, the Plaintiff’s claim that Mr. Walker committed false
light still fails. For instance, this Court adopted the reasoning of the Breitbart Memo p. 8,
requiring the Plaintiff to plead false light to the same standards as defamation. This Court further
advised the Plaintiff in the Motion Hearing that such pleading must be made with specificity.
Namely, this Court told the Plaintiff that he must state what it is that the Defendants said that was
actionable, when it is that they said it, and to whom they said it. 7 The Court also told him that
Kimberlin v. White, 7 F. 3d 527, 528-29 (6th Cir. 1993).
3
Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. Sup. Ct. 1994).
4
Kimberlin v. Dewalt, 12 F. Supp. 2d 487 (D. Md. 1998).
5
Id.
6
U.S. v. Kimberlin, F. 2d 210, 225-238 (7th Cir. 1986)
7
Mr. Walker doesn’t yet have a transcript of the September 3, 2015 hearing. However, the
descriptions is based on the official recordings of that hearing, and Mr. Walker expects to have an
official transcript before any hearing on this motion. See also Brown v. Ferguson Enters., Inc.,
No. 12-CV-1817-CCB at *5 (D. Md. Dec. 11, 2012) (requiring the plaintiff to provide a “specific
2

4

mere implications and imputations would not be sufficient, but the Plaintiff continued to use
those terms in the FAC.8 Indeed, attached as Exhibit A is a paragraph by paragraph comparison
of the body of the original complaint in this case with the FAC. There is not a single instance
where the Plaintiff has provided additional specificity for any of the statements alleged to have
been made, nor has he removed the conclusory references to Mr. Walker allegedly implying or
imputing that the Plaintiff was involved in SWATting. Likewise, this Court also adopted the
Breitbart Memo’s reasoning that malice is a required element of false light, p. 10, and the
Plaintiff never alleges any facts that would lead this Court to believe that Mr. Walker made any
false statement with malice. In short, this Court has told the Plaintiff what he must plead when
amending his complaint this fourth time, and he has failed to do so.
Finally, the Plaintiff does not properly allege that Mr. Walker proximately caused the
Plaintiff any damage by any alleged false statements. For all of these reasons, the claim for false
light should be dismissed.

description of the content of the alleged statements,” as well as “when and how they were
communicated”).
8
See, e.g., FAC ¶ 68 (stating Frey, in concert with “others” including Mr. Walker, “began
publicly implying and stating that Plaintiff had him swatted), ¶ 71 (accusing Mr. Walker of
“imputing that Plaintiff swatted him”), ¶ 72 (accusing Mr. Beck of allowing Messrs. Walker and
Frey to “impute, imply and state that Plaintiff targeted Defendant Frey with swatting and caused
Defendant Walker to be fired”), ¶ 75 (claiming that in the same interviews that Messrs. Walker
and Frey “imply and impute that Plaintiff swatted them”), ¶ 80 (claiming that letters to
Congresspersons by Mr. Walker and others “in conjunction with the false statements by
Defendants imputed that Plaintiff was involved in the swattings”), ¶ 105 (claiming a webinar that
included Mr. Walker ”stated and/or imputed that Plaintiff was involved with swatting and had
gotten Defendant Walker terminated from his employment”), and ¶ 144 (“The named
Defendants’ statements... contained false statements, representations or imputations about
Plaintiff that place him before the public in a false light”).
5

II.
THE PLAINTIFF FAILS TO PROPERLY PLEAD PUBLICITY OF PRIVATE FACTS BY
FAILING TO ALLEGE THAT THE DEFENDANTS PUBLICIZED ANYTHING THAT
WAS PRIVATE OR A FACT
This is one of three new causes of action based on invasion of privacy that the Plaintiff
has alleged in the new case: invasion of privacy by publication of private facts, invasion of
privacy by intrusion into seclusion and invasion of privacy by misappropriation of name or
likeness. That is, he did not list them as causes of action in Kimberlin v. National Bloggers Club,
et al. (I), No. GJH-13-3059 (D. Md. 2013), and didn’t, therefore, allege facts to support these
causes of action in that original statement of facts. So it should not be a surprise that, having
submitted a virtually identical statement of facts in this case, the Plaintiff has failed to allege
facts sufficient to sustain these new causes of action.
Under Maryland law, in order to plead the tort of publicity given to private facts the
Plaintiff must allege the following elements:
One who gives publicity to a matter concerning the private life of another is
subject to liability to the other for unreasonable invasion of his privacy, if the
matter publicized is of a kind which
(a)

Would be highly offensive to a reasonable person, and

(b)

Is not of legitimate concern to the public.

Hollander v. Lubow, 277 Md. 47, 55, 351 A. 2d 421 (1976). However, the only claims that the
Plaintiff alleges the Defendants gave publicity to were 1) allegations and implications that he
was involved in the SWATting of Messrs. Walker, Frey and Erickson, 2) allegations that he
caused Mr. Walker to lose his job, and 3) allegations that he attempted to frame Mr. Walker for
the crime of assault.
First, these claims fail because they are conclusory allegations. See Twitchy Memo p. 5,
Blaze Memo pp. 11-12, Breitbart Memo p. 7. In essence, the Plaintiff asserts the claim without
6

actually alleging factual support in his Statement of Facts or in the claim itself.
Second—and this almost seems too obvious to say—but in order to claim that the
Defendants have publicized private facts, the Plaintiff must first admit they are true:
A “fact” is a proposition which correctly describes a state of affairs in the world.
To say that something is a “fact” is necessarily to say that it is true. It is for this
reason that one never encounters the phrase “false facts,” while the phrase “true
facts” is a barbarous redundancy.
Doe v. U.S., 83 F. Supp. 2d 833, 841 (S.D. Tex. 2000). 9 In Doe, as in the instant case, the
plaintiff was claiming invasion of privacy by publicity of private facts, while simultaneously
claiming that they were not true. The Doe court dismissed the claim, stating that in contrast to
defamation and false light, where the harm is caused by falsehoods being uttered about a person,
the tort of publication of private facts “is designed to redress reputational injuries made all the
more painful because the public revelations about deeply private and intimate matters are
undeniably true.” 83 F. Supp. 2d at 842.
Third, even if we read the assertion of this cause of action as a spontaneous confession to
these criminal and immoral acts, none of these alleged facts are private. The commission of a
crime is not rightfully considered a matter of privacy, and the only person who might arguably
have a right to privacy regarding the facts of Mr. Walker’s termination is Mr. Walker.
Finally, once again the Plaintiff has failed to properly allege that Mr. Walker has
proximately caused any damage under this tort. For all of these reasons, the Plaintiff has failed
to allege the tort of publicity of private facts, justifying dismissal of this count.

See also Uranga v. Federated Publications, Inc., 138 Idaho 550, 67 P. 3d 29, 32-33. (2003)
(“[t]he cause of action for public disclosure of embarrassing private facts ‘provides for tort
liability involving a judgment for damages for publicity given to true statements of fact’”
(emphasis added)). As Dean Prosser has said, this is “a cause of action in publicity, of a highly
objectionable kind, given to private information about the plaintiff, even though it is true and no
action would lie for defamation.” Hollander, 277 Md. at 57 (emphasis added).
9

7

III.
THE PLAINTIFF FAILS TO PROPERLY PLEAD INVASION OF PRIVACY BY
INTRUSION INTO SECLUSION BY FAILING TO ALLEGE UNLAWFUL INTRUSION,
OR INVOLVEMENT IN PRIVATE MATTERS
The Plaintiff also alleges invasion of privacy by intrusion into seclusion and also fails to
plead its elements—another new tort unsupported by his statement of facts. The Court of
Appeals has described unlawful intrusion into seclusion as follows:
One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another, or his private affairs or concerns, is subject to liability to the
other for unreasonable invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.
Hollander, 351 A. 2d at 55. The Plaintiff has neither alleged unlawful intrusion nor that any
alleged intrusion was into the Plaintiff’s “seclusion.”
First, once again, the Plaintiff only makes conclusory allegations.
Second, the Plaintiff has not alleged unlawful intrusion.

“Unlike defamation, the

intrusion on seclusion tort deals with the manner in which Defendant obtained the information
rather than the truth or falsehood of the information itself.” Trundle v. Homeside Lending, Inc.,
162 F.Supp.2d 396, 401 (D. Md., 2001). The Plaintiff never alleges that any of the Defendants
did anything outside of using the ordinary tools of journalism—asking persons questions,
examining public records, or reciting eyewitness accounts—and, therefore, the Plaintiff has
failed to allege intrusion “in a manner which would be highly offensive to a reasonable person.”
Id.10 As in Beaumont, the instant Plaintiff “in reality objects to the allegedly false and scurrilous
comments, an objection not going to the method used to secure information.” 237 NW 2d at
See also Beaumont v. Brown, 65 Mich. App. 455, 463, 237 NW 2d 501 (1975) (“merely writing
a letter” was not an unlawful method of intrusion); Wilson v. Sysco Food Services of Dallas, Inc.,
940 F. Supp. 1003, 1014 (N.D. Tex. 1996) (“inquiries into Plaintiff’s private affairs, particularly
her sexual activities” was not an unlawful method of intrusion); and Pierson v. News Group
Publications, Inc., 549 F. Supp. 635, 640 (S.D. Ga. 1982) (“An essential element of this tort is a
physical intrusion analogous to a trespass”).
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8

463. Thus, the Plaintiff has failed to allege that there is any unlawful intrusion.
Third, just as the Plaintiff failed to allege “private facts” in relation to publicity of private
facts, he has failed to allege that the Defendants intruded into his private affairs.
Finally, the Plaintiff has failed again to properly allege that he was damaged or that Mr.
Walker proximately caused such damage. Therefore, this Court should dismiss any claim for
invasion of privacy by intrusion into seclusion.
IV.
THE PLAINTIFF FAILS TO PROPERLY PLEAD APPROPRIATION OF HIS NAME OR
LIKENESS
The Plaintiff’s final new cause of action is the most absurd. After spending 52 pages
alleging that the Defendants have essentially trashed his reputation, rendering him “odious,
infamous and/or frightening,” FAC ¶128, the Plaintiff suddenly decides five pages later that the
same Defendants are trading on his “good” name.
Under Maryland law, “[o]ne who appropriates to his own use or benefit the name or
likeness of another is subject to liability to the other for invasion of his privacy.” Lawrence v.
A.S. Abell Co., 299 Md. 697, 702, 475 A.2d 448 (1982).
First, as usual, his allegations are purely conclusory.
Second, the Plaintiff’s most basic error is that there is no cause of action for such
appropriation unless they are using the Plaintiff’s “good” reputation for their economic benefit:
The value of the plaintiff’s name is not appropriated by mere mention of it, or by
reference to it in connection with legitimate mention of his public activities; nor is
the value of his likeness appropriated when it is published for purposes other than
taking advantage of his reputation, prestige, or other value associated with him,
for purposes of publicity.
Id. at 702 (emphasis added). In other words, if Nike sold “Air Jordans” emblazoned with the
familiar silhouette of retired basketball player Michael Jordan without Mr. Jordan’s permission,

9

he would have a cause of action against Nike because the company would be taking advantage of
his enduring good reputation as an athlete to sell its athletic shoes. However, that isn’t what the
Plaintiff has alleged in this case. In this case, the Plaintiff claims that the Defendants haven’t
taken advantage of his good name; he alleges that they ruined his allegedly good name and
allegedly made money in the process of doing so. That simply isn’t what the tort is about.
Third, Lawrence instructs that “a person’s name or likeness must have commercial or
other value before an appropriation is actionable.” 299 Md. at 706. The Plaintiff has made no
such allegation.
Fourth, Lawrence instructs that the use must be more than incidental:
The fact that the defendant is engaged in the business of publication, for example
of a newspaper, out of which he makes or seeks to make a profit, is not enough to
make the incidental publication a commercial use of the name or likeness. Thus a
newspaper, although it is not a philanthropic institution, does not become liable
under the rule stated... to every person whose name or likeness it publishes.
299 Md. at 703. The Plaintiff has not made any proper allegations of non-incidental uses of his
name or likeness. In his non-conclusory allegations, he has alleged that the Defendants used his
name and likeness solely in websites where news is disseminated.
Fifth, the Plaintiff has made no proper allegation as to how he has been damaged by the
alleged use of his name and likeness or how Mr. Walker proximately caused such damage.
For all of these reasons, the Plaintiff has failed to properly allege invasion of privacy by
misappropriation of his name or likeness, and this count should be dismissed.
V.
THE PLAINTIFF DOESN’T PROPERLY ALLEGE ANY ACTUAL INTERFERENCE
WITH AN EXISTING CONTRACT, OR HIS BUSINESS RELATIONSHIPS
Mr. Walker has previously noted that the Plaintiff’s claims for Interference with Business
Relations and Interference with Prospective Economic Advantage are in fact claims for Tortious

10

Interference with an Existing Contract as well as Tortious Interference with Business
Relationships. Whatever these counts are called, this Court has already ruled that the Plaintiff
has failed to plead these counts by adopting the Malkin Memo which states that:
The Complaint does not sufficiently allege causation. Kimberlin’s interference
claim rests on two business relationships: a) his employment by the “Justice
Through Music” nonprofit, and b) his supposed career as a musician. Complaint,
¶ 173. But Kimberlin is not just an “employee” of Justice Through Music, he is its
Director. Id., ¶ 8. As a matter of both law and logic, his relationship with an entity
he controls cannot be interfered with, tortiously or otherwise. As for his supposed
music career, Kimberlin provides no specifics as to how any act of either
defendant caused him to lose bookings, recording deals, etc. Xereas v. Heiss, 933
F. Supp. 2d 1, 11 (D.D.C. 2013) (claim that defendants interfered with plaintiff’s
longstanding relationships in comedy field dismissed where it identified no
specific future employment prospect, only vague hope). And as to either alleged
expectancy, the Complaint alleges mere “disruption” of a business relationship,
not the required “destruction.” ¶ 174; see also Med. Mut. v. B. Dixon Evander &
Assocs., 339 Md. 41, 54, 660 A.2d 433, 439 (1995) (to establish causation “the
plaintiff must prove that the defendant's wrongful or unlawful act caused the
destruction of the business relationship which was the target of the interference”).
Malkin Memo p. 9-10. The first claim—that the Plaintiff’s employment relationship can’t be
interfered with as a matter of law and logic—is not specific to Mrs. Malkin or Twitchy LLC.
Likewise, the failure to allege destruction applies to all Defendants by its own terms.
Further, while the Malkin Memo’s argument that the Plaintiff has failed to allege
interference with the Plaintiff’s music career is on the surface specific to Malkin and Twitchy, the
argument that the Plaintiff “provides no specifics as to how any act of either defendant caused
him to lose bookings, recording deals, etc.” applies equally to Mr. Walker. The entirety of the
Plaintiff’s claim that any defendant interfered with his music career is found in FAC ¶ 116 when
the Plaintiff writes:
The Defendants engaged in a concerted campaign of online defamation, false
light, false narratives, battery, intimidation, threats, fraud, the filing of groundless
civil suits and criminal charges, cyber bullying and acting unlawfully, in order to
interfere with Plaintiff’s business relationships and his prospective advantage both
as an employee of Justice Through Music and as a musician.
11

These same allegations (found in paragraph 173 in the original Complaint) were not sufficient to
state a claim against Malkin and Twitchy as part of that undifferentiated group of defendants and,
logically, are insufficient to state a claim against Mr. Walker.
For all of these reasons, the Plaintiff has failed to properly allege any form of tortious
interference, and this count should be dismissed.
VI.
THE PLAINTIFF’S CLAIM FOR BATTERY IS BARRED BY THE STATUTE OF
LIMITATIONS
The Plaintiff’s claim of battery arises from the incident on January 9, 2012. As will be
shown in a forthcoming Motion for Summary Judgment, any claim that Mr. Walker assaulted the
Plaintiff on that day is precluded by collateral estoppel—twice. The Plaintiff had his day in court
on these claims, twice. He lost, twice. Mr. Walker should not be forced to litigate the issue a
third time.
In addition, his claim is untimely. Courts have has regularly held that MD CODE CTS. &
JUD. PROC. §5-105, which states that “[a]n action for assault, libel, or slander shall be filed
within one year from the date it accrues” applies equally to actions for battery. See, e.g., Coby v.
Mobley, 1994 U.S. Dist. LEXIS 5125, *5 (D. Md. 1994) (“Ms. Coby had not alleged the
intentional torts of assault and battery, both of which would be barred by Maryland’s one year
statute of limitations...”) and Madison v. Harford Cnty, No. MJG-12-CV-1120, *45 n. 38 (D. Md.
Aug. 2, 2013) (“[a]ssault and battery claims are subject to a one year limitation period under
Maryland law. See MD. CODE CTS. & JUD. PROC. §5-105.”).11 On the face of the Complaint the
11

The reason for this is that in Maryland law, the terms “assault” and “battery” are deeply
blended and often confused. As stated in Lamb v. State, 93 Md. App. 422, 428 (1991):
By way of informal (or sometimes even formal) shorthand, both the case law and
the statutory law frequently use the simple noun “assault” to connote a
consummated battery alone and at other times to connote the combination of the
12

Plaintiff alleges that the incident involving the alleged battery occurred on January 9, 2012,
Compl. ¶¶43-44,12 and, therefore, this litigation falls well outside this statute of limitations.
Thus, even if the claim was not precluded by collateral estoppel, any claim for battery should be
dismissed because the statute of limitation has run out on the face of the FAC.
VII.
THE PLAINTIFF DOESN’T PROPERLY STATE A CLAIM FOR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS BECAUSE HE FAILED TO ALLEGE
OUTRAGEOUS CONDUCT OR A PHYSICAL MANIFESTATION OF DISTRESS
This Court has all but decided this claim in Mr. Walker’s favor. As stated in the Blaze
Memorandum and adopted by this court:
[E]ven if the Blaze Defendants made or published intentionally false statements...
such acts could not possibly give rise to an IIED claim. See Spirpal v. Fengrong
Wang, CIV. WDQ-12-0365, 2012 WL 2880565, at *4 (D. Md. July 12, 2012)
(granting motion to dismiss because “[d]efamatory conduct ‘in no way satisfies
[the] exacting standard for extreme and outrageous conduct .’”) (internal citations
omitted). Moreover, even if the Blaze Defendants deliberately joined Kimberlin’s
portrayed vast blogger conspiracy in an attempt to target and harass him..., even
that would not constitute the extreme conduct necessary for an IIED claim.
“‘[S]trategically designed [speech]’” that may even be “‘intended and calculated
to harass’ the plaintiff by accusing him of crimes is not extreme and outrageous.”
Id. at *4 (internal citation omitted).
inchoate attempt to beat or to batter followed immediately by the consummation
of that attempt. Thus used, “assault” is a synonym for “battery” and is also a
synonym for the combined form “assault and battery.”
Therefore, in Maryland, assault is shorthand for a number of acts that include what is in other
states referred to as battery. See, e.g., MD. CODE CRIM. LAW §3-201(b) (defining “assault” as
“assault, battery, and assault and battery”); Snyder v. State, 210 Md. App. 370, 380-381 (2013)
(“[c]ommon law assault, then, is a chameleon concept that no one should attempt to describe too
precisely”); Dixon v. State, 133 Md. App. 325, 755 A.2d 560, 570 (2000) (“[a]ssault generally
requires either an actual battery, an attempted battery, or an attempt to frighten”).
12
The paragraph numbering in the FAC, like the original Complaint, is not entirely sequential. It
goes from 1-159, up until the Third Claim for Relief, then that claim is numbered 42-48, and
then the Complaint resumes the prior numbering at 160 until the end. Further, there are no page
numbers aiding navigation by page. In this case, the paragraphs referenced (43-44) refer to the
first 43rd and 44th paragraph (found in the Statement of Facts), which is found on the thirteenth
page of the FAC.

p. 13. In Mr. Walker’s case, he is alleged to have done the following to cause distress 1) made
intentionally false statements and 2) battery. This Court has already found, vis-à-vis the Blaze
Defendants, that intentionally false statements are not sufficient to make out a claim for IIED,
and adding battery (if it were not barred by collateral estoppel) is not sufficient to drag his claim
across the high threshold required for such claims.
Further, Maryland law requires that the Plaintiff must also allege that his emotional
distress has a physical manifestation. As the Maryland Court of Appeals affirmed, “[a] plaintiff
must prove, however, a ‘clearly apparent and substantial physical injury’ in one of four ways: (1)
an external condition; or (2) symptoms of a resulting pathological; (3) physiological; or (4)
mental state.” Exxon Mobil Corp. v. Albright, 433 Md. 303, 71 A.3d 30, 63 (2013). The
requirement of such a showing of physical manifestation is a guard against falsehoods, allowing
some objective measure of the person’s emotional state. The instant Plaintiff has not made any
non-conclusory allegation that he has felt any emotional distress and has made no allegation at
all of a physical manifestation of such distress. As a result, his claim to have suffered Intentional
Infliction of Emotional Distress fails.
Finally, the Plaintiff doesn’t make any non-conclusory allegations establishing proximate
causation of his non-distress. For all of these reasons, this claim should be dismissed.
VIII.
PLAINTIFF’S CLAIM FOR CIVIL CONSPIRACY MUST FAIL BECAUSE IT IS NOT
AN INDEPENDENT TORT AND HE HAS NOT PLED ANY OF THE ELEMENTS OF
CONSPIRACY
First, under Maryland law there is no independent tort of civil conspiracy. Alleco Inc. v.
Harry & Jeanette Weinberg Foundation, Inc., 340 Md. 176, 191 (1994). It is only a method of
aggregating responsibility for torts. As stated in Carr v. Watkins, “[t]he act done must be one

which if done by one alone would be unlawful,” 227 Md. 578, 588 (1962). Having failed to
properly allege any state law tort, the Plaintiff has likewise failed to allege any conspiracy to
commit any tort.
Second, the Plaintiff has made no effort to actually allege the elements needed to make
out a claim of conspiracy. He simply says “conspiracy,” and similar terms throughout the
Complaint, without alleging facts that would allow this Court to conclude that such a conspiracy
existed.

Such conclusory allegations are not sufficient to attach conspiracy liability, and,

therefore, any claim based on conspiracy should be dismissed.
CONCLUSION
This lawsuit—both its state and federal iterations—represent the Plaintiff’s attempt to
punish the victims of crimes and those who supported those victims for their reaction to those
crimes. Indeed, contrary to the Plaintiff’s assertion at the Motion Hearing, it represents an
attempt to prevent the Defendants from even mentioning his name, given that he believes that the
mere mention of his name is tortious misappropriation. Yet, after five attempts to plead these
claims, it is clear that the Plaintiff cannot properly plead any claim against Mr. Walker related to
SWATting or anything else. As of October 15, 2015, the case in its various iterations will have
been two years old, reaching back into conduct that occurred more than five years ago. It is time
for this litigation to end.
REQUEST FOR A HEARING
Mr. Walker also hereby formally requests a hearing on this motion to dismiss at the
earliest convenient opportunity. Mr. Walker notes that he will not be available on the following
dates: September 29, October 5, and November 4 and 16. Further, since Virginia courts have a
practice of holding motions every Friday, Mr. Walker suggests that this Court avoid Fridays for

any hearing if possible, so that any unexpected hearings in Virginia are less likely to come into
conflict with any hearing before this Court.

WHEREFORE Defendant Walker requests that all claims are dismissed under Md. Rule 2-322(b)
(2); that such dismissals be granted with prejudice and without leave to amend; that this Court
should consider motions for sanctions and, upon such motions, grant monetary sanctions and
injunctive relief appropriate for a vexatious litigant; and that this Court grant such other relief as
appropriate.

Monday, September 28, 2015

Respectfully submitted,

Aaron J. Walker, Esq.
Va Bar# 48882
P.O. Box 3075
Manassas, Virginia 20108
[redacted]
AaronJW72@gmail.com
(No fax)

CERTIFICATE OF SERVICE
I certify that on the
day of
, 2015, I served copies of this
document on Brett Kimberlin at [redacted], Bethesda, Maryland 20817, via U. S. Mail, on the
following co-Defendants via email: William Hoge via Patrick Ostronic; DB Capital Strategies
and Dan Backer, Esq. via Dan Backer, Esq.

MARYLAND:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

BRETT KIMBERLIN,
Plaintiff
v.

Case No. 403868V

NATIONAL BLOGGERS CLUB, ET AL.,
Defendants

ORDER GRANTING DEFENDANT WALKER’S MOTION TO DISMISS
Upon consideration of the “Defendant Walker’s Motion to Dismiss,” and any opposition
thereto, it is this _________ day of __________________, 2015, hereby
ORDERED that Defendant Walker’s Motion to Dismiss is GRANTED as to all claims in
the instant case; and it is further
ORDERED that such dismissal is GRANTED with prejudice and without leave to
amend.

Hon. Michael D. Mason
Judge, Circuit Court of Maryland for Montgomery County