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September Term, 2014:
Nos: 1553 and 2099
AARON J. WALKER, ESQ., ET AL.
September Term, 2015:
APPELLEE WALKER’S MOTION TO STRIKE OR DISREGARD ALL OR PART
OF THE APPELLANT’S REPLY BRIEF
NOW COMES Appellee Aaron J. Walker, Esq., and files this Motion to Strike or
Disregard All or Part of the Appellant’s Reply Brief and states the following:
THE APPELLANT’S REPLY BRIEF CONTAINS AN IMPERMISSIBLE
SURREPLY TO APPELLEE WALKER’S MOTION TO DISMISS
On August 18, 2015, Mr. Walker1 filed his Appellee’s Brief, including a Motion to
Dismiss (“MTD”) as part of that filing. On or about August 24, 2015, the Appellant filed
a “Appellant’s Response in Oppostion [sic] to Appellee Aaron Walker’s (1) Motion to
Dismiss and (2) Motion to Exceed the Page Limit.” That was his single opposition to Mr.
Walker’s MTD allowed by the Maryland Rules.
By spending part of page 2 of the Reply Brief of Appellant Brett Kimberlin
(hereinafter the “Reply”) discussing Mr. Walker’s MTD, the Appellant has turned that
part of his brief into an improper surreply without seeking leave to file such surreply.
Indeed, on page 1 of the Reply, the Appellant acknowledges that “Appellant already filed
a separate response to these motions to dismiss” without explaining why he had a right to
Mr. Walker refers to himself in the third person for stylistic purposes and to depersonalize this case.
a further reply. Accordingly, every passage discussing Mr. Walker’s MTD should be
stricken as an improper surreply.
THE APPELLANT’S REPLY BRIEF CONTAINS AN UNTIMELY REPLY TO
MR. WALKER’S APPELLEE BRIEF
As noted above, the Brief of Appellee Walker was filed on August 18, 2015.
Therefore, the deadline to file a reply to Mr. Walker’s brief was twenty days later, plus
three days to account for service by mail—thus, September 10, 2015. Instead, the
Appellant has chosen to reply to Mr. Walker’s brief some thirty-seven days after Mr.
Walker filed his brief.
There can be no doubt that the Reply Brief is in part a response to Appellee
Walker. First, as noted above, the Appellant used this opportunity to surreply to Mr.
Walker’s MTD on page 2 of Appellant’s Reply by his own admission.
Second, on page 11 of the Reply, he discusses the admissibility of evidence
regarding Mr. Walker’s termination. Appellees McCain and Hoge did not discuss the
issue of Mr. Walker’s termination in their brief—most likely because there is no evidence
that Messrs. McCain and Hoge said anything about Mr. Walker termination offered at
trial. Since only Mr. Walker’s brief discussed the issue, any response on that question is,
therefore, an untimely reply to Mr. Walker’s brief.
Third, also on page 11 of the Reply, the Appellant complains that the court below
improperly excluded testimony “from Appellees Hoge and Walker regarding emails they
wrote to Appellant’s wife” and makes a similar complaint on page 12. To the extent that
he is protesting the exclusion of Mr. Walker’s writing, that can only relate to Mr. Walker’s
Fourth, even the cover of the Appellant’s Reply is styled simply as a Reply, as
opposed to a Reply to Messrs. Hoge, and McCain (and perhaps Mr. Akbar), indicating
that he believes it to be an appropriate Reply to all parties, including Mr. Walker.
For these four reasons, there can be no doubt that this Reply is clearly in part an
untimely Reply to Mr. Walker’s Appellee Brief, and at the very least, those portions
should be stricken.
THE APPELLANT’S REPLY BRIEF CONTAINS INAPPROPRIATE NEW
Another impropriety in the Appellant’s Reply is that it contains new legal
arguments, presented for the first time in this Reply. As this Court noted in State v. Jones,
138 Md. App. 178, 771 A.2d 407 (2001), it is appropriate to strike those portions of a
reply that contain such new arguments because
A reply brief serves a limited purpose... An appellant is supposed to use the
reply brief to respond to the points and issues asserted in the appellee’s
brief which, in turn, are ordinarily offered by the appellee in response to the
appellant’s contentions in the opening brief... If an appellant is permitted to
interject new claims or issues in a reply brief, this may well result in a
fundamental injustice upon the appellee, who would then have no
opportunity to respond in writing to the new questions raised by appellant.
771 A.2d at 438 (internal citations and quotation marks omitted). Over and over again,
the Appellant makes new arguments in his Reply, prejudicing the Appellees who have no
opportunity to respond in writing.
For instance, in his Reply (pp. 4-5) the Appellant raises for the first time the
argument that he was deprived of sufficient time to call character witnesses. By way of
background, this Court will recall that the Appellant is a convicted perjurer ordinarily
barred from testifying under MD. CODE Cts. & Jud. Proc. §9-104. However, at trial Judge
Johnson ruled that he could testify in spite of this statute. The Appellant is now absurdly
appealing a victory in the lower court on this issue on the theory that he was unfairly
surprised when he won that motion, even though he didn’t preserve that objection in the
lower court by seeking a continuance.
Now, for the first time in his Reply, the Plaintiff is claiming that he was prejudiced
because he didn’t have enough time to call character witnesses, anticipating potential
attacks on his character for truthfulness. Previously, the Appellant cited in his Brief the
need to personally prepare to testify. See, e.g., Appellant’s Brief p. 10 (“[b]y that point,
literally minutes before testimony was to begin, Appellant was wholly unprepared to take
the stand”) and p. 20 (“[w]hen Appellant filed a pretrial motion to find Rule 9-104
unconstitutional so he could prepare himself to testify at trial” and “[b]y that time,
Appellant had no time to prepare himself to testify, thereby prejudicing him”). Putting
aside the Plaintiff’s continued misrepresentation that Judge Johnson had ruled he could
testify for the first time on the same day as the presentation of evidence—even after the
Appellees pointed out this falsehood—the Plaintiff did not raise his objection that he
needed to obtain additional unnamed witnesses at the trial level by seeking a continuance
or even in his Appellant’s Brief. Instead, having failed to preserve this objection at every
turn in this case, he raises this concern for the first time in his Reply.2
In another example, on page 12 of the Reply the Appellant argues that certain
emails were not hearsay and were not covered by attorney-client privilege. These
arguments are again new arguments for the Appellant because he offered absolutely no
argument in the Appellant’s Brief for their admission. The entirety of the Plaintiff’s
discussion about them in his Brief is found in two passages in his Brief. First, the
Appellant writes on page 28 that
[f]inally, Appellant did address the issue of falsity at trial. First, he
attempted to introduce emails that Appellant’s wife had sent to Appellees
Walker and Hoge where she stated that the allegations were false. However,
the court sustained objections to those emails.
Meanwhile, the Appellant writes on page 33 that
[t]he judge would not allow Appellant to present any evidence of emails
sent to Appellees Walker and Hoge from Appellant’s wife stating that the
things they were saying about Appellant were untrue and should be deleted
from the Internet.
Plainly, the Plaintiff presented no argument for their admission besides a generalized
belief that he really, really wanted it to come into evidence. Therefore, presenting any
argument now as to why it should be admitted amounts to improperly advancing a new
Further, it is a ridiculous argument. The Appellant could have filed a motion to declare
§9-104 unconstitutional at any time, and he could have sought subpoenas for potential
character witnesses—on the possibility that they might be needed—well ahead of the
trial, on the hope that he would win the right to testify. In essence, he wants to get a new
trial because of his failure to plan for the possibility that he might win this issue, even
after he failed to raise the objection in the trial court by seeking a continuance.
argument for the first time in his Reply.3
Meanwhile, for the first time in his Reply the Appellant attempts to challenge
Judge McGann’s grant of a motion for summary judgment. As this Court will recall, Mr.
Walker pointed out in his Appellee’s Brief (pp. 8-10) that
the Appellant repeatedly attempts to depict [Judge McGann’s ruling] as a
dismissal for failure to state a claim, rather than a summary judgment.
However, the Appellant’s Record Extract includes as “Record Extract-B”
entries in the docket indicating that a motion for summary judgment, not a
motion to dismiss, was granted on that date. In any case, the Record itself
indicates that Mr. Walker’s motion to dismiss was denied on January 13,
2014 (Dkt. No. 66), but that his motion for summary judgment was granted
for every count but defamation and false light on July 1, 2014. (R. 193-94)
(footnotes omitted). In short, the Appellant’s Brief pretended that he had lost a motion to
dismiss, rather than a motion for summary judgment, and argued the issue as such. Now,
in a silent admission that he attempted to mislead this Court, the Appellant claims for the
first time Judge McGann’s grant of summary judgment is inappropriate, and he is thereby
robbing the Appellees of the opportunity to respond to his arguments relating to Judge
McGann’s actual ruling, as opposed to the Appellant’s misrepresentation of it.4
Since these are new arguments raised for the first time in the Reply, at the very
least they should be stricken.
THE APPELLANT’S REPLY BRIEF CONTAINS NEW ALLEGATIONS OF
FACTS NOT SUPPORTED BY THE RECORD AND MISREPRESENTING
JUDGE JOHNSON’S RULING BELOW
As noted in Mr. Walker’s Motion to Dismiss
Further, this new argument is meritless. Besides the arguments previously addressed, the
Appellant presented no evidence at trial to rebut Mr. Walker’s testimony that he was Mrs.
Kimberlin’s lawyer. See Record Extract D pp. 103-104. As for the claim that privilege
was shed by including Mr. Hoge in the communication, if the Appellant had raised that
issue at trial, Messrs. Walker and Hoge would have replied that Mr. Hoge was serving as
Mr. Walker’s paralegal at the time.
In any case, as noted in Appellee Walker’s Brief, pp. 8-11, the Plaintiff is procedurally
barred from challenging Judge McGann’s grant of summary judgment, because he has
not developed an appropriate Summary Judgment Record.
As an act of supreme irony, in a brief attempting to convince this Court that
the Appellant can be trusted to testify truthfully, the Appellant has
repeatedly and deliberately misstated the truth. In almost every section of
Mr. Walker’s brief it is necessary to take a moment to correct the
misstatements of the truth in the Appellant’s brief. See Brief of Appellee
Walker (hereinafter “WBr.”) 6-10, 13-19 and 22-23.... In addition to those
misstatements of the truth, the Appellant makes the following
misstatements in his brief (hereinafter “KBr.”).
p. xi-xii. That MTD went on to list countless claims that were not supported by the
evidence developed below. Instead of apologizing for trying to mislead this Court, he
feigns confusion about this simple point in Mr. Walker’s MTD and then continues to
engage in the same behavior in his Reply. Besides repeating falsehoods already
debunked, the Appellant makes the following new and false allegations in his Reply (with
the Appellant’s words in boldface):
“When Appellant sought rulings on the constitutionality and
applicability of Rule 9-104, Judge McGann and Judge Jordan told him that he
would have to wait for the trial judge to make that ruling.” (Reply 3) Appellee
Walker has already noted the Appellant’s misrepresentation of the August 7, 2015 hearing
before Judge Jordan. Further, nothing in the Record or Record Extract supports these new
allegations about the hearing before Judge McGann. Specifically, there is no evidence
that he sought a ruling on the Constitutionality of §9-104 on July 1, 2014, or that Judge
McGann told Mr. Kimberlin he would have to wait for the trial judge to make that ruling.
“Appellant did present evidence at trial that showed falsity, including...
testimony from the Appellees themselves who admitted that they had no evidence
that Appellant had ever been arrested, prosecuted, or convicted of any sex offense”
Reply 5. This represents an enhancement of the Appellant’s Brief where he says on page
30 that “Appellees knew that Appellant was never arrested, prosecuted or sentenced for
any sex crimes.” As noted in Mr. Walker MTD ¶ 44, only one Appellee was even asked
about what he knew of the Appellant’s criminal record related to sex crimes: Mr. Walker.
Further, Mr. Walker was never even asked about the Appellant’s record as a whole (as it
relates to sex crimes), but only asked about his record in Indiana, and the result of one
particular criminal charge filed by his wife. That is not the same as asking if there was
any evidence of the Appellant being arrested, prosecuted, and so on. He didn’t ask that
question, and, therefore, he can’t pretend it was answered.
“[T]he trial court indicated on several occasions that the Appellees’
statements could not be considered libelous if they amounted to opinion or only
imputed that Appellant was a pedophile.” (Reply 6) This Court would look in vain for
any statement in the Record or Record Extract that indicated that Judge Johnson was
focused on the distinction between opinion and fact, or even an instance where he
mentioned it. Judge Johnson rested his ruling on the Plaintiff’s failure to offer sufficient
evidence of falsity.
“[E]ven through his daughter and other evidence said [the claim that
the Appellant was a pedophile] was false.” (Reply 8) His self-described daughter did
not, and could not, testify as to whether it was false that he was a pedophile. All she did
testify to is that he didn’t make an overture toward her.5 Further, absolutely no other
evidence was presented on that question.
From “Although [his daughter] did testify that Appellant was not a
pedophile...” to “...have suffered severe emotional distress.” (Reply 11-12) As noted
above, the Appellant’s self-described daughter never testified that he was not a pedophile.
Further, every claim about what she would have testified to is not supported by the
Record or Record Extract, and is speculative at best.
“Moreover, there was no attorney client privilege since Appellant’s wife
was never a client of Appellee Walker” (Reply 12) This is not only false, it is directly
contradicted by the only testimony on the subject: Mr. Walker’s. See Record Extract D
pp. 103-104. This evidence establishes that Mr. Walker was Mrs. Kimberlin’s attorney.
Indeed, a large part of the Appellant’s claim of malicious prosecution or abuse of process
The Appellant also states that Appellees “Hoge and McCain admit in their appeal brief
that Appellant’s daughter ‘did testify that the allegations of pedophilia were false...’ at
18.” In fact, that passage amounts to those Appellees quoting the Appellant’s brief, and,
in any case, she did not so testify.
was predicated on Mr. Walker acting as an attorney, but allegedly unethically. See, e.g.,
Record Extract A ¶ 26. But now when it suits him, the Appellant asserts without any
evidence in the Record or Record Extract to support him that Mr. Walker was not her
attorney. While Mr. Walker denies doing anything unethical while providing pro bono aid
to Mrs. Kimberlin as she briefly sought to hold the Appellant responsible for his sexual
abuse when she was underage and to deny him custody of her two underage daughters,
the only evidence presented below establishes that Mr. Walker was her attorney.
“Appellant presented testimony at the summary judgment hearing on
July 1, 2014” (Reply 13) The claim that the Appellant presented any testimony at that
hearing, or about the contents of said testimony is not supported by the Record or Record
Extract. Indeed, as noted in Mr. Walker’s Appellee Brief, the Appellant hasn’t created a
sufficient Summary Judgment Record to establish what happened at the July 1, 2014,
summary judgment hearing.
In short, in a case where he is arguing that he can be trusted to testify truthfully,
the Plaintiff has serially misrepresented the facts and the proceedings below, justifying
this Court in striking those claims. Further, given how many portions of the Reply are
improper and deserve to be stricken, it might be best to strike the entire document.
As demonstrated above, the Appellant’s Reply contains 1) impermissible surreply
material, 2) an untimely reply to Mr. Walker’s Appellee Brief, 3) improper new legal
arguments, and 4) new factual allegations unsupported by the Record or Record Extract
and a misrepresentation of the grounds of Judge Johnson’s decision. This Court can
simply strike or ignore the individual parts identified. Attached as Exhibit A is a copy of
the main text of the Appellant’s Reply, with each improper portion of the Reply struck out
(including unsupported allegations already mentioned in Appellee Walker’s MTD or in
his Appellee’s Brief). That exhibit could aid this Court in striking out or disregarding the
However, it might make more sense for this Court to strike the whole thing. The
improper portions of the Appellant’s brief are many, and permeate the document. Looking
at Exhibit A, the phrase “Swiss Cheese” comes to mind. From this reality, this Court can
reasonably conclude that the misconduct saturates the Reply so thoroughly that the Reply
should be stricken in its entirety rather than forcing this Court to pick through the Reply
to find what is proper. Further, striking the document should be done while denying leave
to re-file, so that the Appellant doesn’t enjoy the benefit of a second chance.
Finally, this Court can reasonably conclude that this latest misconduct by the
Appellant justifies dismissal. How many times does the Appellant have to flout this
Court’s rules before its tolerance ends?
WHEREFORE, the Appellant’s Reply Brief should be either stricken or disregarded as
outlined above, or stricken in its entirety without leave to re-file; the case should be
dismissed for this latest instance of the Appellant’s misconduct; and the Appellees should
be given all other relief that is appropriate.
Monday, September 28, 2015
Aaron J. Walker, Esq. (Va Bar# 48882)
P.O. Box 3075
Manassas, Virginia 20108
Phone: (703) [redacted] (no fax)
STATEMENT ON FONT
This document was typed in Times New Roman, 13-point font.
CERTIFICATE OF SERVICE
I certify that on Monday, September 28, 2015, I served copies of the Motion for Leave,
Motion to Dismiss and Appellee’s Brief on Brett Kimberlin at [redacted], Bethesda,
Maryland 20817, via U. S. Mail, on the following co-Appellees via email: William Hoge,
Robert Stacy McCain and Ali Akbar with their consent.
The “meat” of the Reply, with every improper portion blocked out
IN THE COURT OF SPECIAL APPEALS
September Term, 2014:
Nos: 1553 and 2099
September Term, 2015:
AARON J. WALKER, ESQ., ET AL.
ORDER GRANTING APPELLEE WALKER’S MOTION TO STRIKE
Upon consideration of the Appellee Walker’s Motion to Strike, and any opposition
or support thereto, it is this _________ day of
, 2015, hereby
ORDERED that the Reply Brief of Appellant Brett Kimberlin is hereby
STRICKEN. The Clerk of Court is directed to return that motion to the Appellant; and it
ORDERED that the Appellant is not permitted to file a new reply in its place.
Judge, Court of Special Appeals