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Case No. 403868V




NOW COMES Defendant Aaron J. Walker, Esq., and files this Opposition to the Plaintiffs
Motion to Strike (MTS) (Dkt. No. 120) and states the following:

This motion to strike by the Plaintiff should be stricken. Recently, the U.S.

District Court for the District of Maryland warned the same Plaintiff in Kimberlin v. Frey, Case
No. 8:13-cv-03059-GJH (D. Md., October 15, 2015) that All subsequent motions that fail to
properly serve all parties in this matter or are improperly signed will be struck from the Court's
docket. Exhibit A. That warning came on October 15. Four days later, the Plaintiff filed his
motion to strike in this Court. It included only his name and signature and not his address,
telephone number, facsimile number, if any, and e-mail address, if any as required by Md. Rule
1-311(a). Further, his certificate of service states that he has only served it on Mr. Walker and no

other defendant.1 Mr. Kimberlin has been warned, repeatedly, to follow these rules and continues
to flout them. There appears to be ample just cause to summarily strike this filing.

If the Plaintiffs motion not stricken, it should be denied. Moving to the merits of

the Plaintiffs motion to strike, the Plaintiff seems to think that Mr. Walkers motion for a hearing
under the Maryland anti-SLAPP statute (Motion for Hearing) (Dkt. No. 114) must be part of a
motion to dismiss for failure to state a claim (Dkt. No. 105). This is not consistent with the law
of this case. For instance, this Court has already allowed Defendant Breitbart.com to file both a
motion to dismiss for failure to state a claim (Dkt. No. 46) which added up to sixteen pages as
well as a motion to dismiss under the Marylands anti-SLAPP statute (Dkt. No. 47) which was an
additional seven pages. That is, they were allowed to file two different motions to dismiss based
on two different theories, in contrast to Mr. Walkers two motions seeking different kinds of
relief on two different theories of law. If those two Breitbart motions were counted as oneas
the Plaintiff wants to do with Mr. Walkers motionsthen their motion would have been seen as
twenty three pages long, all without seeking leave to exceed the page limitations.2

Likewise, the Plaintiff seems to think it is improper to consider a motion for

partial summary judgment at this time (Dkt. No. 112), claiming it is not ripe. MTS 2. His
claim that it is not ripe is not supported by any specificity, and it isnt true. The motion for
partial summary judgment is based on res judicata and collateral estoppel. Mr. Walker has

In addition to that, according to the Maryland Judiciary Case Search, the Plaintiff filed a Reply
to Responses from Defendants Breitbart Holdings, Glen Beck, Mercury Radio Arts and the Blaze
Re Plaintiff's Motion for Reconsideration/Relief from Judgment and Attorney Fees on October
28, 2015 (Dkt. No. 122). However, the Plaintiff has not deigned to serve that document on Mr.
This count is made without considering tables of contents or exhibits. If tables of contents or
exhibits were countedwhich they traditionally are notthen the Breitbart motions would have
added up to sixty-five pages.

provided this Court with all the evidence it needs at this time to determine whether the doctrines
of res judicata or collateral estoppel apply. Accordingly, the motion is ripe.

The Plaintiff also seems to think that the Mr. Walkers Motion for Partial

Summary Judgment must be included as part of his Motion to Dismiss for failure to state a claim.
However, the motions have a very different posture. A motion to dismiss for failure to state a
claim posits that even if every well-pleaded allegation is true, the Plaintiff still hasnt stated a
claim for which relief can be granted. In other words, it is not a factual inquiry, but a test of the
sufficiency of the complaint. By comparison, a motion for summary judgment is a test of the
evidencealbeit one that is stacked in the non-movants favor.

The Plaintiff also claims that Mr. Walkers Motion for Hearing was... in his

original Motion to Dismiss. MTS 1. This is simply false. While there was an anti-SLAPP
component to the original motion to dismiss, virtually none of the arguments made in the current
Motion for Hearing appeared in the original motion to dimiss. The claim that a mere allegation of
bad faith was sufficient didnt appear. Motion for Hearing, pp. 1-3. Further, the majority of Mr.
Walkers evidence of the Plaintiffs bad faith involves events that occurred long after Mr.
Walkers original motion. For instance, Mr. Walker complains that the FAC includes legal
arguments this Court has already rejected (Motion for Hearing, pp. 4-6); parties that should have
been excluded given what happened in the September 3, 2015, motions hearing (Motion for
Hearing, pp. 6-8); and falsehoods included in the FAC (Motion for Hearing, pp. 8-11) and uttered
in the September 3, 2015, hearing (Motion for Hearing, pp. 11-14). If these events occurred after
Mr. Walkers original motion to dismiss, then, logically, the arguments about them are not based
on that motion. In any case, a motion for a hearing on a motion to dismiss does not have to be
part of that motion to dismiss.


The Plaintiff claims that Mr. Walker named his motion for a hearing a Motion for

Hearing on anti-SLAPP and that this motion has already been rejected after a hearing. MTS
2. First, that is not the title of Mr. Walkers motion for a hearing, nor is it a correct summary. It
is not a request for a hearing on the anti-SLAPP statute; it is a motion for a hearing on Mr.
Walkers motion to dismiss as soon as practical pursuant to the anti-SLAPP statute. 3 Further, this
Court did not determine on September 3, 2015, that this was not a SLAPP case. Instead this
Court said that it couldnt determine whether it was a SLAPP suit at this time, explicitly
reserving judgment on that issue.

The Plaintiff also similarly claims that the motion for partial summary judgment

added arguments and exhibits that he had to delete from his original motion to dismiss. MTS
1. While it is true that many of the arguments in the motion for partial summary judgment
were in the original motion to dismiss, they were moved to a motion for partial summary
judgment after Mr. Walkers observation of this Court on September 3, 2015. Every lawyer
knows that no plan survives contact with a judge, and Mr. Walker saw how this Court was
reluctant to find any facts in relation to the Plaintiffs bad faith or status as a public figure on the
basis of a motion to dismiss. Since Mr. Walkers defense of res judicata or collateral estoppel
relied on some facts found outside of the FAC, Mr. Walker decided that the appropriate vehicle
for those defenses was a motion for summary judgment. In short, Mr. Walker watched how this
Court analyzed various issues and adjusted his presentation accordingly so as best to convince
this Court that he is correct. There is nothing nefarious about that: it is what an attorney is
supposed to do.

Indeed, the Plaintiffs gross mischaracterization of that motion suggests that he has not even
read the document he is asking this Court to strike.


In short, the Plaintiff has made no cogent or legally sufficient argument for

striking these motions, and, therefore, the motion to strike should be denied.

WHEREFORE, the Plaintiffs motion to strike should be denied.

Wednesday, November 4, 2015

Respectfully submitted,

Aaron J. Walker, Esq.

Va Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(no fax)

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 and on the
following co-Defendants via email: William Hoge via Patrick Ostronic; DB Capital Strategies
and Dan Backer, Esq. via Dan Backer, Esq; and Lee Stranahan.



Case No. 403868V




Upon consideration of the Plaintiffs motion to strike (Dkt. No. 120), Defendant Walkers
opposition thereto, and any other document in support or opposition thereto, it is this _________
day of __________________, 2015, hereby
ORDERED that the Plaintiffs motion to strike is DENIED.

Hon. Michael D. Mason

Judge, Circuit Court of Maryland for Montgomery County