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    Hoge v. Kimberlin, et al.

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    BK_TK MSJ Redacted

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    Hoge v. Kimberlin, et al.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    3K views15 pages

    BK - TK MSJ Redacted

    Uploaded by

    himself2462
    Hoge v. Kimberlin, et al.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 15
    IN THE CIRCUIT COURT OF CARROLL COUNTY, MARYLAND WILLIAM HOGE, Plaintiff, v. No. C-16-70789 BRETT KIMBERLIN, et al,, Defendants DEFENDANTS BRETT AND TETYANA KIMBERLIN’S MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR HEARING Now come Defendants Brett and Tetyana Kimberlin and move this Court to grant them summary judgment in this case. In support of this motion, Defendants state that on October 14, 2016, a jury decided the companion case, Walker v. Kimberlin, No. 398855-V, filed in Montgomery County Circuit Court by Hoge’s associate and employer Aaron Walker, in favor of Defendants. Therefore, Plaintiff is barred in this case from arguing that the statements made about him in the criminal complaints were false or malicious. Also, on the defamation charges, because of the jury's verdict finding the statements true, the statements cannot be considered false or defamatory. Finally, as Judge Mason held in the companion case, damages on the malicious prosecution charges can only be nominal so there is no basis for the case to move forward. Previously, this Court stayed discovery in the instant case to wait for a determination in the companion case because a determination in favor of Defendants could result in the dismissal of this case, The Jury Verdict and Judgment in Walker v. Kimberlin Estops Plaintiff From Arguing That Defendants Maliciously Prosecuted Him 1. On July 30, 2013, Defendant Brett Kimberlin filed citizens complaints against Plaintiff and against Aaron Walker for harassment. On May 15, 2015, Defendant Tetyana Kimberlin filed citizens complaints against Plaintiff and against Aaron Walker for Internet harassment of their minor daughter, which caused her serious emotional distress. The language in the complaints against Walker and Hoge were virtually identical. In fact, in the May 15, 2015 complaint, the factual statement included both Hoge and Walker. Exhibit 1. 2. After the cases were nolle prossed, Walker sued Defendants in Montgomery County Circuit Court for malicious prosecution, and Hoge sued Defendants in Carroll County for malicious prosecution. Walker's case was tried by a jury from October 11-14, 2016 before Judge Michael Mason. Both Hoge and Walker testified. The jury returned a verdict in favor of Defendants, and Judge Mason issued the judgment on October 24, 2016 on the claims of malicious prosecution and injunctive relief. Exhibit 2, 3. Maryland law requires malicious prosecution juries to issue a special verdict delineating what is true or false about the criminal complaints, and then a judge is required to make a determination if there is still probable cause left after receiving that special verdict. Montgomery Ward v. Wilson, 339 Md. 701 (Md. 1995). In Walker's case, Judge Mason issued special verdict sheets and instructed the jury to go through the two complaints and list everything that was false or misleading. Whatever was left would be considered true and the Judge would then consider those true statements to determine if probable cause still existed for issuance of the criminal complaints. 4, Inthe Walker case, the jury found 99.9% of the information in the complaints true, and Judge Mason found that there was overwhelming probable cause to support the issuance of the complaints. Immediately following the verdict, Judge Mason excoriated Walker for wasting the Court's time with his personal war against Defendants, and he told Walker that he could not file any further legal actions in Montgomery County unless counsel represented him. 5. The 99.9% of information the jury found was true is the same information Plaintiff Hoge has relied on to allege that Defendants maliciously prosecuted him. In fact, in Hoge’s Complaint, everything he lists in Exhibit B as false, was found by the jury to be true. 6. Because the jury has already issued a verdict, after hearing the testimony of Plaintiff, and decided that the statements made in the complaints were true, and Judge Mason has issued a judgment based on that verdict, Plaintiff is estopped from now asserting that the statements are false. He cannot relitigate the case here and hope for a different outcome. Accordingly, this Court must grant summary judgment on the malicious prosecution claims, Counts I and XI. Count V1, The Defamation Count For Sending An Email Stating That Plaintiff Was Served With A Peace Order Prohibiting Him From Stalking Or Harassing Defendants’ Minor Daughter 7. In Count Vi, Plaintiff alleges that Defendant Brett Kimberlin defamed him by sending an email to some lawyers involved in litigation with Defendant stating that Plaintiff was served with a peace order prohibiting him from stalking or harassing Defendants’ minor daughter, 8. At that time, this was a true statement, so it cannot even form the basis for a defamation claim. Moreover, at a hearing on that Peace Order, Judge Creighton stated that Plaintiff harassed and bullied the minor, and warned that his conduct amounted to “child abuse” that could result in him going to prison. See Exhibit 3. 9. Finally, the jury in the Walker case found that Plaintiff and Walker did stalk and harass the minor. 10. Clearly, there is nothing defamatory in telling the truth. Count IX, The Defamation Count For Defendant Brett Kimberlin Advising Twitter That Plaintiff Had Engaged In Cyberstalking And Harassment Of Defendants’ Minor Daughter 11. In Count IX, Plaintiff alleges that Defendant Brett Kimberlin informed Twitter that Plaintiff was engaged in cyberstalking and harassment of Defendants’ minor Gaughter. Although Plaintiff has not stated what the defamatory words were, it is lear that Defendant stated the truth to Twitter about Plaintiff's conduct toward the minor. As noted above, Judge Creighton agreed that Plaintiff cyber bullied the minor. The jury in the Walker case found that Defendant truthfully stated that Walker and Plaintiff stalked and harassed the minor online causing her severe emotional distress. That jury's finding amounts to a determination that Plaintiff used the Internet to engage in targeted abuse of Defendants’ daughter. The statement to Twitter is true, 12. Clearly, there is no defamation from Defendant's statement to Twitter and Plaintiff has not shown any harm. Plaintiff Has Not Alleged Any Damages And Punitive Damages Cannot Be imposed Because Judge Mason Found That There Was Probable Cause 13. Plaintiff has not alleged any actual damages or loss, and, as Judge Mason noted, incidental costs are not recoverable. Judge Mason told Walker that even ifhe ‘won, he could only receive “nominal damages.” Moreover, because punitive damages cannot be awarded absent a showing of malice, and malice cannot be shown if there is probable cause, punitive damages are not available in this case. Wherefore, for all the foregoing reasons, this Court should grant summary judgment in this case to Defendants Brett and Tetyana Kimberlin. Defendants request a hearing on this motion. Respectfully submited, Brett Kimberlin Certificate of Service I certify that I served a copy of this motion on Plaintiff this 10% day of November, 2016 Brett Ki fn DISTRICT COURT OF MARYLAND FOR Mentaorey Sounty _ BF rca Teun aD Kinde [Kimbestin S100 Beh Tie Road a Se oe Bethesda, MD 20817 301 320 5925 Manassas, VA 20109 ‘Gy, Sate, A Lip Coe "Yekehoor ‘Gig, Site, aad Zip Coss” Tategaoae ‘Resocy, wabapenry, ad UD. (Meer Osly) kcal DEFENDANT'S DESCRIPTION: Driver's Licease# Sex M_ Race Wt S10" _ wr 200 Hair BE__ Byes Br Complexion Pale other. pop 42years__ 1p APPLICATION FOR STATEMENT OF CHARGES Page lof 3 I, the undersigned, apply for statement of charges and a summons or warrant which may lead to the arrest of the above named Defendant because on or about, 1/13 through S15-—____ ax Montgomery County Maryland (78013 i . the above named Defendant {sed an interactive computer to hares, abuse, bully, our sinor daugher Ml which caused her to suer serious eae be ene ie eda co motional distress and fear for her personal safety ‘See altached page for specifics. (Continued on arached ________—pages) (DC/CR 1A) ‘Isolemaly affirm under the penalties of perjury thatthe contents ofthis Application are true tothe best of my knowledge, information and belief. May 18, 2015 have read or had read to me and I understand the Ne May 18, 2015 i Time: _2!22. M ude Commissioner. ont oe on, at_________ | (lwhen notified by the Clerk, at the (ocation shown deo 332 030 Statement of Tetyana Kimberlin and Brett Kimberlin on behalf of their minor child, EB Kimberlin, against William sii 20 Ridge Road, Westminster, MD 21157, and Aaron Walker, |Manassas, VA 20109 for violation of Grace’s Law, Maryland Criminal Code, 3-805 Our daughter, EN Kimberlin, is a 16-year old minor who lives in Montgomery County Maryland, For the past several years, two adult men, William Hoge, from Westminster, MD and Aaron Walker, from Manassas, VA, have bullied her relentlessly through interactive computer services, directly and indirectly. She and we have repeatedly asked them to stop but they continue to do so and to get others to join them in their bullying, This has caused her serious emotional distress, so serious in fact that she has had to change schools twice because students and their parents read the online bullying and this led to intense bullying and shunning at school, This has caused her academics to suffer and taken a toll on her emotional _ health She has had severe emotional distress, nightmares, depression, and lives in fear of injury or death from them and what they will unleash against her online or otherwise. Many parents will not let their daughters be around| because of the false attacks made online by Mr. Hoge and Mr, Walker. Mr. Hoge is a 67 year old man and Mr. Walker is a 42 year old man who have been harassing and stalking our family obsessively and incessantly for the past four years. ‘They have written literally thousands of posts and tweets about us just to harass us. ‘They investigate every aspect of our family and business, and they have compiled and stored gigabytes of data in scores of digital and paper folders about our family. ‘They conduct forensic analysis of photos and videos associated with us through meta data markings to find patterns and connections. They have sent people to our home to take photographs. We have had to call 911 several times because of unwanted contacts and we have had to install security cameras and 24/7 alarms. ‘Mr. Hoge and Mr. Walker have exhibited a disturbing level of interest in since she was 14 with a multi year course of harassing and stalking behavior. They have attacked her repeatedly, directly and indirectly, through their online presence by falsely accusing Brett Kimberlin of sex offenses and insinuating and imputing that jis in danger. They have stated that she needs to be protected and that they can save her. They have trolled her social media accounts and copied pages, photos, videos and posts that she has placed online. This frightened her so much that she was forced to take these social media forums private or shut them down altogether. ‘They have tried to friend and follow her on Twitter and Facebook. In April 2015, ‘Twitter permanently suspended Mr. Hoge’s Twitter account because it found that he engaged in “targeted abuse” of our family. Mr. Hoge and Mr. Walker have orchestrated campaigns to post vile and insulting ‘comments of sexual nature on articles about her and on music videos she has uploaded to YouTube. They have incited other twisted individuals to pile on against AY her in perverted and unwanted ways. They have posted comments on blog posts

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