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MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

BRETT KIMBERLIN,
Plaintiff
v.

Case No. 403868V

NATIONAL BLOGGERS CLUB, ET AL.,


Defendants

DEFENDANT WALKERS OPPOSITION TO THE PLAINTIFFS MOTION TO STAY


THIS COURTS DECISION OF JANUARY 12, 2016 (DKT. NO. 155)
NOW COMES Defendant Aaron J. Walker, Esq., and files this Opposition to the
Plaintiffs Motion to Stay this Courts Decision of January 12, 2016 (Dkt. No. 155) and states the
following:
1. Although styled as a Motion to Stay, the Plaintiffs motion actually seeks reconsideration of its
ruling of January 12, 2016 (Dkt. No. 154). The Plaintiff says it is not appropriate for this Court
to have granted summary judgment based on the outcome in Kimberlin v. Walker, et al., No.
380966V (Md. Mont. Co. Cir. Ct. 2013) because that case has been appealed. 1 That is precisely
the same argument the Plaintiff raised in the December 8, 2015 hearing, saying at approximately
10:36:48 a.m. in the recording:
That case is on appeal, right now, in the Court of Special Appeals. Andyou
knowtheres issues in that case that are pretty suspect. I mean Judge Jordan
even issued an order on a motion for a new trial and made note of the problems

1 The appeal is styled as Kimberlin v. Walker, et al., Sept. Term 2014 Nos. 1553 and 2099, Sept.
Term 2015 No. 365 (Md. App. 2014).

with that case.2 And so I dont think it would be wise to ever go on res judicata in
that case.3
At the same hearing, Mr. Walker responded to that argument as follows (at approximately
10:49:24 a.m.):
If [the Plaintiff] wins the appeal, he can go back to that court, in that case, and
say, Hey, since these things were dismissed in part on res judicata, Id like to go
bring them up again. But he can do it at that time. He doesnt need to be
running a duplicative lawsuit in this courtroom that he could have brought last
year.
In other words, if the Plaintiff wins his appeal and the case is remanded for a new trial, he can
amend his complaint in Kimberlin v. Walker, et al. to include issues that survived dismissal in this
case. That is the most appropriate approach that this Court can take because, whether the
Plaintiff wins his appeal or not, it wont change the fact that res judicata requires that any
person who has a claim against another bring all possible claims for relief in a single action.
Opinion and Order (Jan. 12, 2016), p. 6. Even if he wins his appeal, there shouldnt be two cases
about whether Mr. Walker committed torts against the Plaintiff prior to August, 2014. There
should be one case to determine all such claims.
2. The stay the Plaintiff seeks is effectively the same denial of summary judgment that he sought on
December 8, 2015, for the same reason he offered on December 8because he is appealing
Kimberlin v. Walker, et al.
2 This statement about Judge Jordan is misleading. Attached as Exhibit A is the order denying a
motion for a new trial. The only problem in the trial noted by Judge Jordan in his April 9, 2015
order denying a new trial was that Judge Johnson, for whatever reason, did not enter a formal
order granting judgment in favor of Mr. Walker and his co-defendants. That is, Judge Johnson
announced his decision but never wrote a formal order before he retired. Although Judge Jordan
was correct to rectify this technical failure, it has no bearing on the appeal as demonstrated by
the fact that the Plaintiff never references this issue in his brief before the Court of Special
Appeals. See Exhibit D. Simply put, Judge Jordan didnt say what the Plaintiff claimed he did.
3 Please note that these quotes are not from an official transcript of that hearing, but represents
Mr. Walkers non-professional transcriptions based on the official recording.
2

3. The only new fact alleged is the claim that the Court of Special Appeals officially began
consideration on December 14, 2015. Plaintiffs Motion to Stay 2.
4. However, this is not true. The Court of Special Appeals was scheduled to begin deliberations on
that date. However, the Plaintiff has not disclosed that deliberations had been delayed by the
Plaintiffs own misconduct. On November 16, 2015, the Court issued a show cause order
directing the Plaintiff to explain why he didnt provide all of the transcripts needed to decide that
appeal. Exhibit B. On December 15, 2015, a day after the Court of Special Appeals was
scheduled to begin deliberating, the Court of Special Appeals decided Mr. Kimberlins response
to that show cause was adequate andon that dayordered the Circuit Court to forward
transcripts that the instant Plaintiff had failed to provide. Exhibit C. Logically, then, the actual
deliberations could not begin until those transcripts arrive on some unknown date after thatand
this Court doesnt have to be told that there is no way to guess when the matter will be resolved
once deliberations properly begin. Thus, the Plaintiff didnt provide all the transcripts he should
have provided, causing a delay in the consideration of his appeal, and now he asks this Court to
wait until his appeal is considered while misleading this Court about the status of the Court of
Special Appeals deliberations.
5. Further, the Plaintiff has not shown that he meets any of the factors typically considered when
deciding whether to grant such a stay. The most obvious of these factors is the likelihood of
success on the merits. While the Plaintiff frequently portrays his appeal in Kimberlin v. Walker,
et al., as being likely to succeed, in fact it is deeply defective.
6. Attached as Exhibit D is a copy of the Plaintiffs Appellants Brief in that case, and attached as
Exhibit E is a copy of Mr. Walkers Appellees Briefprovided so this Court can assess for itself

the strength of the Plaintiffs appeal. Mr. Walker will only briefly outline its many flaws in this
Opposition.
7. A major portion of the Plaintiffs argument on appeal centers around MD CODE Cts. & Jud. Proc.
9-104, which prohibits convicted perjurers such as the Plaintiff from testifying. The Plaintiff
has argued that Judge Johnsons grant of a motion for judgment under Md. Rule 2-519 should
be overturned because the Plaintiff believes that this statute is unconstitutional. The problem
with that argument is it is procedurally barred. Judge Johnson granted the Plaintiffs motion
seeking an exception to 9-104, ruling that he could testify at that trial. The Plaintiff simply
chose not to testify as a matter of strategy. In other words, on that issue he is attempting to
appeal a victory. Thus, the Plaintiff is left claiming that his victory caught him by surprise,
prejudicing him. However, that is an objection to the timing of the decision, not its outcome, and
the Plaintiff didnt preserve that objection by seeking a continuance. This Court can reasonably
conclude that the Plaintiff is not likely to succeed on that question.
8. The Plaintiff also challenges the decision by Judge McGann to grant summary judgment, in
significant part by falsely portraying McGanns July 1, 2014, decision as granting a motion to
dismiss for failure to state a claim.4 It seems axiomatic that when one misstates the truth to an
appellate court about the procedural posture of the lower courts decision, it suggests this person
is not confident he or she will obtain victory on the merits of the issue. The instant Plaintiff also
challenges Judge Johnsons grant of a judgment under Md. Rule 2-519. This Court has a copy
of the relevant transcripts, and it can determine for itself whether Judge Johnsons decision was
well-grounded or vulnerable to appeal. Finally, the Plaintiff complains about a number of

4 In seeking his motion for partial summary judgment, Mr. Walker provided this Court with
copies of Judge McGanns July 1 order granting summary judgment. It was not, contrary to the
Plaintiffs claims, a grant of dismissal upon failure to state a claim.
4

evidentiary rulings, but presents no argument as to why those rulings were wrongexcept that
he really, really wanted the evidence to come in. All of these points are covered in more detail in
Mr. Walkers Appellee Brief. Therefore, the Plaintiff cannot show a likelihood of success in
Kimberlin v. Walker, et al. and, therefore, cannot justify a stay.
9. Additionally, the balance of harms favors a denial of a stay. This lawsuit has been going on in
various courts for over two years, and every day it goes on is an additional irreparable harm to
Mr. Walker. If the application of res judicata is suspended until the appeals are resolved, this
case could be in limbo for years, neither going into discovery nor being closed. This would not
only defeat the purpose of the rule of finality res judicata is supposed to promote, but it gives the
Plaintiff an incentive to appeal, even when the appeals are frivolous.5
10. On the other hand, the Plaintiff suffers no irreparable harm if the partial summary judgment
stands and he later wins his appeal in Kimberlin v. Walker, et al. As noted above, if his appeal is
successful, he can bring in the allegations in this case (to the extent that they were not dismissed
on a failure to state a claim) into the revived Kimberlin v. Walker, et al. The Plaintiff will simply
be forced to do what he should have done the first time: bring all of his claims against Mr.
Walker in a single case.
11. Accordingly, the Plaintiff has offered no reason to justify the stayor de facto reconsideration
he is seeking, and, therefore, the Plaintiffs motion should be denied.

WHEREFORE, the Plaintiff's motion to stay or reconsider this Courts January 12, 2016, order
should be denied, and this Court should grant any other relief that is just and equitable.

5 This would also go to the question of whether the public interest favors such a stay. Certainly,
it is not in the publics interest for the Plaintiff to add this duplicative suit to this Courts crowded
docket, and it is not in the publics interest to reward frivolous appeals.
5

Wednesday, January 27, 2016 Respectfully submitted,

Aaron J. Walker, Esq.


Va Bar# 48882
[redacted]
Manassas, Virginia 20109
(703) [redacted]
AaronJW72@gmail.com

VERIFICATION
I, Aaron Walker, solemnly affirm under the penalties of perjury that the contents of the
foregoing paper are true to the best of my knowledge, information, and belief and that all
attached exhibits are true and correct copies of the originals.

Dated:

CERTIFICATE OF SERVICE
I certify that on the
day of
, 2016, I served copies of this
document on Brett Kimberlin at [redacted], Maryland 20817, via U. S. Mail and on the following
co-Defendants via email: William Hoge via Patrick Ostronic; DB Capital Strategies, Dan Backer,
Esq. via Dan Backer, Esq.; and Lee Stranahan, pro se.

MARYLAND:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

BRETT KIMBERLIN,
Plaintiff
v.

Case No. 403868V

NATIONAL BLOGGERS CLUB, ET AL.,


Defendants

ORDER DENYING PLAINTIFFS MOTION TO STAY


Upon consideration of the Plaintiffs Motion to Stay Courts January 12, 2016 Ruling
(Dkt. No. 155), Defendant Walkers Opposition to the Plaintiffs Motion to Stay this Courts
Decision of January 12, 2016, and any other filings in support or opposition thereto, it is this
_ day of

, 2016, hereby

ORDERED that the Plaintiffs motion to stay is DENIED.

Hon. Michael D. Mason


Judge, Circuit Court of Maryland for Montgomery County