Mot. to Strike (Redaction)

8/20/2019 Mot. to Strike (Redaction)

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IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

BRETT KIMBERLIN,

Appellant September Term, 2!"#

N$%# !&&' an( 2))

*+

September Term, 2!

AARON + -ALKER, ES.+, ET AL+ N$+ '/&

Appellee% C$n%$l0(ate( Appeal%

APPELLEE -ALKER1S MOTION TO STRIKE OR DISREARD ALL OR PART

OF THE APPELLANT1S REPLY BRIEF

NOW COMES Appellee Aaron J. Walker, Esq., and files this Motion to Strike or

Disregard All or Part of the Appellant’s epl! "rief and states the follo#ing$

I+

THE APPELLANT1S REPLY BRIEF CONTAINS AN IMPERMISSIBLE

SURREPLY TO APPELLEE -ALKER1S MOTION TO DISMISS

On A%g%st &', ()&*, Mr. Walker & filed his Appellee’s "rief, in+l%ding a Motion to

Disiss -M/D01 as part of that filing. On or a2o%t A%g%st (3, ()&*, the Appellant filed

a Appellant’s esponse in Oppostion 4si+5 to Appellee Aaron Walker’s -&1 Motion to

Disiss and -(1 Motion to E6+eed the Page 7iit.0 /hat #as his single opposition to Mr.

Walker’s M/D allo#ed 2! the Mar!land %les.

"! spending part of page ( of the epl! "rief of Appellant "rett 8i2erlin

-hereinafter the epl!01 dis+%ssing Mr. Walker’s M/D, the Appellant has t%rned that

part of his 2rief into an iproper s%rrepl! #itho%t seeking lea9e to file s%+h s%rrepl!.

:ndeed, on page & of the epl!, the Appellant a+kno#ledges that Appellant alread! filed

a separate response to these otions to disiss0 #itho%t e6plaining #h! he had a right to

& Mr. Walker refers to hiself in the third person for st!listi+ p%rposes and to de;

personali


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a f%rther repl!. A++ordingl!, e9er! passage dis+%ssing Mr. Walker’s M/D sho%ld 2e

stri+ken as an iproper s%rrepl!.

II+

THE APPELLANT1S REPLY BRIEF CONTAINS AN UNTIMELY REPLY TO

MR+ -ALKER1S APPELLEE BRIEF

As noted a2o9e, the "rief of Appellee Walker #as filed on A%g%st &', ()&*.

/herefore, the deadline to file a repl! to Mr. Walker’s 2rief #as t#ent! da!s later, pl%s

three da!s to a++o%nt for ser9i+e 2! ail=th%s, Septe2er &), ()&*. :nstead, the

Appellant has +hosen to repl! to Mr. Walker’s 2rief soe thirt!;se9en da!s after Mr.

Walker filed his 2rief.

/here +an 2e no do%2t that the epl! "rief is in part a response to Appellee

Walker. >irst, as noted a2o9e, the Appellant %sed this opport%nit! to s%rrepl! to Mr.

Walker’s M/D on page ( of Appellant’s epl! 2! his o#n adission.

Se+ond, on page && of the epl!, he dis+%sses the adissi2ilit! of e9iden+e

regarding Mr. Walker’s terination. Appellees M+Cain and ?oge did not dis+%ss the

iss%e of Mr. Walker’s terination in their 2rief=ost likel! 2e+a%se there is no e9iden+e

that Messrs. M+Cain and ?oge said an!thing a2o%t Mr. Walker terination offered at

trial. Sin+e onl! Mr. Walker’s 2rief dis+%ssed the iss%e, an! response on that q%estion is,

therefore, an %ntiel! repl! to Mr. Walker’s 2rief.

/hird, also on page && of the epl!, the Appellant +oplains that the +o%rt 2elo#

iproperl! e6+l%ded testion! fro Appellees ?oge and Walker regarding eails the!

#rote to Appellant’s #ife0 and akes a siilar +oplaint on page &(. /o the e6tent that

he is protesting the e6+l%sion of Mr. Walker’s #riting, that +an only relate to Mr. Walker’s

Appellee "rief.

>o%rth, e9en the +o9er of the Appellant’s epl! is st!led sipl! as a epl!, as

opposed to a epl! to Messrs. ?oge, and M+Cain -and perhaps Mr. Ak2ar1, indi+ating

that he 2elie9es it to 2e an appropriate epl! to all parties, in+l%ding Mr. Walker.

>or these fo%r reasons, there +an 2e no do%2t that this epl! is +learl! in part an

%ntiel! epl! to Mr. Walker’s Appellee "rief, and at the 9er! least, those portions

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%n+onstit%tional so he +o%ld prepare hiself to testif! at trial0 and 425! that tie,

Appellant had no tie to prepare hiself to testif!, there2! preB%di+ing hi01. P%tting

aside the Plaintiff’s +ontin%ed isrepresentation that J%dge Johnson had r%led he +o%ld

testif! for the first tie on the sae da! as the presentation of e9iden+e=e9en after theAppellees pointed o%t this falsehood=the Plaintiff did not raise his o2Be+tion that he

needed to o2tain additional %nnaed #itnesses at the trial le9el 2! seeking a +ontin%an+e

or e9en in his Appellant’s "rief. :nstead, ha9ing failed to preser9e this o2Be+tion at e9er!

t%rn in this +ase, he raises this +on+ern for the first tie in his epl!.(

:n another e6aple, on page &( of the epl! the Appellant arg%es that +ertain

eails #ere not hearsa! and #ere not +o9ered 2! attorne!;+lient pri9ilege. /hese

arg%ents are again new arguments for the Appellant 2e+a%se he offered a2sol%tel! no

arg%ent in the Appellant’s "rief for their adission. /he entiret! of the Plaintiff’s

dis+%ssion a2o%t the in his "rief is fo%nd in t#o passages in his "rief. >irst, the

Appellant #rites on page (' that

4f5inall!, Appellant did address the iss%e of falsit! at trial. >irst, he

attepted to introd%+e eails that Appellant’s #ife had sent to Appellees

Walker and ?oge #here she stated that the allegations #ere false. ?o#e9er,

the +o%rt s%stained o2Be+tions to those eails.

Mean#hile, the Appellant #rites on page @@ that

4t5he B%dge #o%ld not allo# Appellant to present an! e9iden+e of eails

sent to Appellees Walker and ?oge fro Appellant’s #ife stating that the

things the! #ere sa!ing a2o%t Appellant #ere %ntr%e and sho%ld 2e deleted

fro the :nternet.

Plainl!, the Plaintiff presented no arg%ent for their adission 2esides a generali%rther, it is a ridi+%lo%s arg%ent. /he Appellant +o%ld ha9e filed a otion to de+lare

;&)3 %n+onstit%tional at an! tie, and he +o%ld ha9e so%ght s%2poenas for potential

+hara+ter #itnesses=on the possi2ilit! that the! ight 2e needed=#ell ahead of the

trial, on the hope that he #o%ld #in the right to testif!. :n essen+e, he #ants to get a ne#

trial 2e+a%se of his fail%re to plan for the possi2ilit! that he ight #in this iss%e, e9en

after he failed to raise the o2Be+tion in the trial +o%rt 2! seeking a +ontin%an+e.

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arg%ent for the first tie in his epl!.@

Mean#hile, for the first tie in his epl! the Appellant attepts to +hallenge

J%dge M+Fann’s grant of a otion for s%ar! B%dgent. As this Co%rt #ill re+all, Mr.

Walker pointed o%t in his Appellee’s "rief -pp. ';&)1 thatthe Appellant repeatedl! attepts to depi+t 4J%dge M+Fann’s r%ling5 as a

disissal for fail%re to state a +lai, rather than a s%ar! B%dgent.

?o#e9er, the Appellant’s e+ord E6tra+t in+l%des as e+ord E6tra+t;"0

entries in the do+ket indi+ating that a otion for s%ar! B%dgent, not a

otion to disiss, #as granted on that date. :n an! +ase, the e+ord itself

indi+ates that Mr. Walker’s otion to disiss #as denied on Jan%ar! &@,

()&3 -Dkt. No. GG1, 2%t that his otion for s%ar! B%dgent #as granted

for e9er! +o%nt 2%t defaation and false light on J%l! &, ()&3. -. &@;31

-footnotes oitted1. :n short, the Appellant’s "rief pretended that he had lost a motion to

dismiss, rather than a motion for summary judgment , and arg%ed the iss%e as s%+h. No#,

in a silent adission that he attepted to islead this Co%rt, the Appellant +lais for the

first tie J%dge M+Fann’s grant of s%ar! B%dgent is inappropriate, and he is there2!

ro22ing the Appellees of the opport%nit! to respond to his arg%ents relating to J%dge

M+Fann’s a+t%al r%ling, as opposed to the Appellant’s isrepresentation of it.3

Sin+e these are ne# arg%ents raised for the first tie in the epl!, at the 9er!

least the! sho%ld 2e stri+ken.I3+

THE APPELLANT1S REPLY BRIEF CONTAINS NE- ALLEATIONS OF

FACTS NOT SUPPORTED BY THE RECORD AND MISREPRESENTIN

UDE OHNSON1S RULIN BELO-

As noted in Mr. Walker’s Motion to Disiss

@ >%rther, this ne# arg%ent is eritless. "esides the arg%ents pre9io%sl! addressed, the

Appellant presented no e9iden+e at trial to re2%t Mr. Walker’s testion! that he #as Mrs.

8i2erlin’s la#!er. See e+ord E6tra+t D pp. &)@;&)3. As for the +lai that pri9ilege#as shed 2! in+l%ding Mr. ?oge in the +o%ni+ation, if the Appellant had raised that

iss%e at trial, Messrs. Walker and ?oge #o%ld ha9e replied that Mr. ?oge #as ser9ing as

Mr. Walker’s paralegal at the tie.3 :n an! +ase, as noted in Appellee Walker’s "rief, pp. ';&&, the Plaintiff is pro+ed%rall!

2arred fro +hallenging J%dge M+Fann’s grant of s%ar! B%dgent, 2e+a%se he has

not de9eloped an appropriate S%ar! J%dgent e+ord.

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relates to se6 +ries1, 2%t onl! asked a2o%t his re+ord in Indiana, and the res%lt of one

parti+%lar +riinal +harge filed 2! his #ife. /hat is not the sae as asking if there #as

an! e9iden+e of the Appellant 2eing arrested, prose+%ted, and so on. ?e didn’t ask that

q%estion, and, therefore, he +an’t pretend it #as ans#ered.@. 6T7e tr0al 5$8rt 0n(05ate( $n %e*eral $55a%0$n% t7at t7e Appellee%1

%tatement% 5$8l( n$t be 5$n%0(ere( l0bel$8% 04 t7e: am$8nte( t$ $p0n0$n $r $nl:

0mp8te( t7at Appellant


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#as predi+ated on Mr. Walker a+ting as an attorne!, 2%t allegedl! %nethi+all!. See, e.g.,

e+ord E6tra+t A H (G. "%t no# #hen it s%its hi, the Appellant asserts #itho%t an!

e9iden+e in the e+ord or e+ord E6tra+t to s%pport hi that Mr. Walker #as not her

attorne!. While Mr. Walker denies doing an!thing %nethi+al #hile pro9iding pro bono aidto Mrs. 8i2erlin as she 2riefl! so%ght to hold the Appellant responsi2le for his se6%al

a2%se #hen she #as %nderage and to den! hi +%stod! of her t#o %nderage da%ghters,

the onl! e9iden+e presented 2elo# esta2lishes that Mr. Walker #as her attorne!.

. 6Appellant pre%ente( te%t0m$n: at t7e %8mmar: =8(9ment 7ear0n9 $n

8l: !, 2!"? @Repl: !' /he +lai that the Appellant presented an! testion! at that

hearing, or a2o%t the +ontents of said testion! is not s%pported 2! the e+ord or e+ord

E6tra+t. :ndeed, as noted in Mr. Walker’s Appellee "rief, the Appellant hasn’t +reated a

s%ffi+ient S%ar! J%dgent e+ord to esta2lish #hat happened at the J%l! &, ()&3,

s%ar! B%dgent hearing.

:n short, in a +ase #here he is arg%ing that he +an 2e tr%sted to testif! tr%thf%ll!,

the Plaintiff has seriall! isrepresented the fa+ts and the pro+eedings 2elo#, B%stif!ing

this Co%rt in striking those +lais. >%rther, gi9en ho# an! portions of the epl! are

iproper and deser9e to 2e stri+ken, it ight 2e 2est to strike the entire do+%ent.

CONCLUSION

As deonstrated a2o9e, the Appellant’s epl! +ontains &1 iperissi2le s%rrepl!

aterial, (1 an %ntiel! repl! to Mr. Walker’s Appellee "rief, @1 iproper ne# legal

arg%ents, and 31 ne# fa+t%al allegations %ns%pported 2! the e+ord or e+ord E6tra+t

and a isrepresentation of the gro%nds of J%dge Johnson’s de+ision. /his Co%rt +an

sipl! strike or ignore the indi9id%al parts identified. Atta+hed as E6hi2it A is a +op! of

the ain te6t of the Appellant’s epl!, #ith ea+h iproper portion of the epl! str%+k o%t

-in+l%ding %ns%pported allegations alread! entioned in Appellee Walker’s M/D or in

his Appellee’s "rief1. /hat e6hi2it +o%ld aid this Co%rt in striking o%t or disregarding the

iproper aterial.

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?o#e9er, it ight ake ore sense for this Co%rt to strike the #hole thing. /he

iproper portions of the Appellant’s 2rief are an!, and pereate the do+%ent. 7ooking

at E6hi2it A, the phrase S#iss Cheese0 +oes to ind. >ro this realit!, this Co%rt +an

reasona2l! +on+l%de that the is+ond%+t sat%rates the epl! so thoro%ghl! that the epl!sho%ld 2e stri+ken in its entiret! rather than for+ing this Co%rt to pi+k thro%gh the epl!

to find #hat is proper. >%rther, striking the do+%ent sho%ld 2e done #hile den!ing lea9e

to re;file, so that the Appellant doesn’t enBo! the 2enefit of a se+ond +han+e.

>inall!, this Co%rt +an reasona2l! +on+l%de that this latest is+ond%+t 2! the

Appellant B%stifies disissal. ?o# an! ties does the Appellant ha9e to flo%t this

Co%rt’s r%les 2efore its toleran+e ends

W?EE>OE, the Appellant’s epl! "rief sho%ld 2e either stri+ken or disregarded as

o%tlined a2o9e, or stri+ken in its entiret! #itho%t lea9e to re;fileK the +ase sho%ld 2e

disissed for this latest instan+e of the Appellant’s is+ond%+tK and the Appellees sho%ld

2e gi9en all other relief that is appropriate.

Monda!, Septe2er (', ()&* espe+tf%ll! s%2itted,

Aaron J. Walker, Esq. -La "ar 3'''(1

P.O. "o6 @)*Manassas, Lirginia ()&)'

Phone$ -)@1 4reda+ted5 -no fa61

AaronJW(gail.+o

STATEMENT ON FONT

/his do+%ent #as t!ped in /ies Ne# oan, &@;point font.


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CERTIFICATE OF SER3ICE

: +ertif! that on Monda!, Septe2er (', ()&*, : ser9ed +opies of the Motion for 7ea9e,

Motion to Disiss and Appellee’s "rief on "rett 8i2erlin at 4reda+ted5, "ethesda,

Mar!land ()'&, 9ia . S. Mail, on the follo#ing +o;Appellees 9ia eail$ Willia ?oge,o2ert Sta+! M+Cain and Ali Ak2ar #ith their +onsent.

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EHIBIT A#/he eat0 of the epl!, #ith e9er! iproper portion 2lo+ked o%t

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IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

BRETT KIMBERLIN,

Appellant September Term, 2!"#

N$%# !&&' an( 2))

*+

September Term, 2!

AARON + -ALKER, ES.+, ET AL+ N$+ '/&

Appellee% C$n%$l0(ate( Appeal%

ORDER RANTIN APPELLEE -ALKER1S MOTION TO STRIKE

pon +onsideration of the Appellee Walker’s Motion to Strike, and an! opposition

or s%pport thereto, it is this da! of , ()&*, here2!

ODEED that the epl! "rief of Appellant "rett 8i2erlin is here2!

S/:C8EN. /he Clerk of Co%rt is dire+ted to ret%rn that otion to the AppellantK and it

is f%rther

ODEED that the Appellant is not peritted to file a ne# repl! in its pla+e.

J%dge, Co%rt of Spe+ial Appeals

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Mot. to Strike (Redaction)

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