walker memorandum in support of mtd (redacted)

8/9/2019 Walker Memorandum in Support of MTD (Redacted)

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MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

Brett Kimberlin,

Plainti

!" Ca#e N$" %&'()(*

Nati$nal Bl$++er# Clb, et al",

Deen-ant#

MEMORANDUM OF POINT. AND AUTHORITIE. IN .UPPORT OF DEFENDANT

/ALKER0. MOTION TO DI.MI.. THE COMPLAINT AND IN*OKING

MARYLAND0. ANTI1.LAPP .TATUTE


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TABLE OF CONTENT.

Table of Authorities 4

Introduction and Summary of Argument 1

Procedural History 4

I. Every Cause of Action is arred by !es "udicata #

II. The Plaintiff is Collaterally Esto$$ed from Claiming that %r. &al'er attered Him( or

Intentionally Inflicted Emotional )istress *$on Him+ and the Plaintiff is Esto$$ed ,rom

)enying that the Plaintiff Tried to ,rame %r. &al'er for that -onAssault( that He Cost%r. &al'er his "ob( and that the Plaintiff is a Pedo$hile /

III. The Plaintiff ,ails to Pro$erly Plead ,alse 0ight 1

A. The Plaintiff is )efamationProof and Therefore -o Cause of Action Can 0ie ,or ,alse 0ight Invasion of Privacy 12

. The Plaintiff ,ails to Plead ,alse 0ight 3ith Sufficient S$ecificity 1/

1. The Plaintiff ,ails to Pro$erly Plead ,alse 0ight in !elation to S&ATting

. The Plaintiff ,ails to Pro$erly Plead ,alse 0ight in !elation to the 0oss of

%r. &al'ers "ob 2

2. The Plaintiff ,ails to Pro$erly Plead ,alse 0ight in !elation to the Alleged

attery 5

I6. The Plaintiff ,ails to Pro$erly Plead Publicity of Private ,acts( by ,ailing to Allege that

the )efendants Publici7ed Anything that 3as Private or a ,act 8

6. The Plaintiff ,ails to Pro$erly Plead Invasion of Privacy by Intrusion into Seclusion( by,ailing to Allege *nla3ful Intrusion( or that It Involved Private %atters 9

6I. The Plaintiff ,ails to Pro$erly Plead A$$ro$riation of His -ame :r 0i'eness( ecauseHe ,ails to Allege the )efendants Have Ta'en Advantage of His ;imately Caused

by Such A$$ro$riation and :nly Alleges Incidental *se of His -ame or 0i'eness 2?

6II. The Plaintiff )oesnt Pro$erly Allege Any Actual Interference 3ith an E>isting Contract(or His usiness !elationshi$s 21

ii


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6III. The Plaintiffs Claim for attery is arred by Collateral Esto$$el and the Statute of

0imitations 24

I@. The Plaintiff )oesnt Pro$erly State a Claim for Intentional Infliction of Emotional

)istress ecause He ,ailed to Allege :utrageous Conduct or a Physical %anifestation of

)istress 28

@. Plaintiffs Claim for Civil Cons$iracy %ust ,ail ecause It is not an Inde$endent Tortand He Has -ot Pled Any of the Elements of Cons$iracy 29

@I. All Claims Should e )ismissed ecause the Plaintiff Serially ,ails to Pro$erly Allege

He 3as )amaged 2/

@II. )ismissal Should e


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TABLE OF AUTHORITIE.

CA.E.

Airframe Sys. Inc. v. Raytheon Co.( 8?1 ,.2d / B1st Cir. ?1? 9

Alleco Inc. v. Harry & Jeanette Weinberg Foundation Inc.( 24? %d. 1#8 B1//4 29

Allen v. !ethlehem Steel Cor".( #8 %d. A$$. 84 B1/99 1

Ananiev v. Freitas( ?14 &0 14??95# B).).C. A$r. 11( ?14 9

Ashcroft v. I#bal ( 558 *.S. 88 B??/ 2

!ag$ell v. %eninsula Regional edical Center ( 1?8 %d. A$$. 4#? B1//4 1( 1( 2

!atson v. Shiflett ( 25 %d. 894 B1// 28

!aron Financial Cor". v. 'atan(on( 4#1 ,.Su$$.d 525 B). %d. ??8 2

!eaumont v. !ro$n( 85 %ich. A$$. 455( 2# -& d 5?1 B1/#5 /

!randenburg v. )hio 2/5 *.S. 444 B1/8/ 2#

!ro$n v. Ferguson *nters. Inc. -o. 1C6191# B). %d. )ec. 11( ?1 ?

!usse v. Steele( ?1? &0 29/4559 B%.). ,la. Aug. 19( ?1? 9

Cardillo v. +oubleday & Co. Inc.( 519 ,. d 829 Bnd Cir. 1/#5 14( 1/

Carr v. Wat,ins( # %d. 5#9 B1/8 29

Coby v. obley( 1//4 *.S. )ist. 0E@IS 515 B). %d. 1//4 24

Cochran v. -riffith *nergy( 48 %d. 124( 42 A. 2d /// B?1 #

Cosby v. +e"t of Human Res.( 45 %d. 8/( 4 A.2d 5/8 B%d. ?1 /

Covington v. /he Houston %ost ( #42 S.&.d 245 BTe>.Ct.A$$.1/9# 1

Cro$ley v. Fo0 !roadcasting Co.( 951 ,. Su$$. #?? B). %d. 1//4 1

+avidson1'ad$odny v. Wal1art Assoc. Inc. ??9 &0 415?25 B). %d. ??9 ?

iv


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+iscon Inc. v. 'yne0 Cor".( 98 ,. Su$$. d 154 B&.).-.D. ??? 9

+i0on v. State( 122 %d. A$$. 25( #55 A.d 58? B??? 25

+oe v. 2.S.( 92 ,. Su$$. d 922 BS.). Te>. ??? #

*ast$ood v. Cascade !roadcasting Co.( 1?8 &ash.d 488( # P.d 1/5 B1/98 1

*00on obil Cor". v. Albright ( 422 %d. 2?2( #1 A.2d 2? B?12 28

Fello$s v. 'ational *n#uirer Inc.( 4 Cal.2d 24( 9 Cal.!$tr. 15( #1 P.d /# B1/98 1

Florida Star v. !JF ( 4/1 *.S. 54 B1/9/ 9

Fo$ler v. %rinters II Inc.( 9/ %d. A$$. 449 B1//1 2

-ainsburg v. Steben & Co.( 929 ,.Su$$.d 22/ B). %d. ?11 ?

-amboc( v. 3elencsics( 489 ,.d 92# B2rd Cir. 1/# 9

-annett Co. Inc. v. Anderson( /4# So.d 1 B,la. A$$.( ??8 1

-ashgai v. 4eibo$it( ( #?2 ,.d 1? B1st Cir.1/92 1

-eneral otors Cor". v. %is,or ( # %d.A$$. /5( 24? A.d #8# B1/#5 12

-oel v. Heller ( 88# ,.Su$$. 144 B).-.".( 1/9# 9

Harnish v. Herald5ail Co.( 84 %d. 28( 98 A.d 148 B1/# 1

Harris v. Jones 91 %d. 58? B1/## 2#

Hollander v. 4ubo$( ## %d. 4#( 251 A. d 41 B1/#8 89

Holt v. Camus( 19 ,.Su$$.d 91/ B). %d.( ??? ?

In re /eletronics( #8 ,. d 195 Bnd Cir. 1/94 9

Jac,son v. 4ongsco"e( 2/4 %ass. 5## B1/95 15

6imberlin v. +e4ong ( 82# -.E.d 11 BInd. Su$. Ct. 1//4 14

6imberlin v. +e$alt ( 1 ,. Su$$. d 49# B). %d. 1//9 ( 14( 18

6imberlin v. +)J ( #99 ,. d 424 B#th Cir. 1/98 14

v


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6imberlin v. 'ational !loggers Club et al. 7I8( -o.


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Schnabel v. Abramson( 2 ,. 2d 92 Bnd Cir. ??? 4

Smith v. *s#uire Inc.( 4/4 ,. Su$$. /8# B). %d. 1/9? 1

Snyder v. State( 1? %d. A$$. 2#? B?12 25

S"engler v. Sears Roebuc, & Co.( 182 %d. A$$. ?( 9#9 A.d 89 B??5 2

S$an v. !oard$al, Regency Cor".( 4?# -.". Su$er. 1?9( /8/ A.d 1145 B-.". Su$er.( ??/ 1

S$ate v. Schiffers( /#5 S& d #? BTe>. A$$.( 4th )ist. 1//9 15

/elni,off v. atusevitch( 24# %d. 581( #? A. d 2?( 48 B1//# 1?

/rundle v. Homeside 4ending Inc.( 18 ,.Su$$.d 2/8 B). %d.( ??1 /

2ranga v. Federated %ublications Inc.( 129 Idaho 55?( 8# P. 2d / B??2 #

2.S. v. Alvare( ( 12 S. Ct. 52# B?1 191/

2.S. v. 6imberlin( 9?5 ,. d 1? B#th Cir. 1/98 1( 14

2hl v. Columbia !roadcasting Systems( 4#8 ,.Su$$. 1124 B&.).Pa.1/#/ 1

Wilson v. Sysco Food Services of +allas( Inc.( /4? ,. Su$$. 1??2 B-.). Te>. 1//8 /

.TATUTE.

%). C:)E C!I%. 0A& F2?1 11( 25

%) C:)E CTS. G "*). P!:C. F51?5 24

%) C:)E Cts. G "ud. Proc. F59?# ?( 4?41

ARTICLE. AND BOOK.

A.:. Scott( Cody Shearer: If He +idnt *0ist the 9ast Right Wing Cons"iracy Would Have

Invented Him( S0ATE( %ay ( 1/// Bavailable at htt$333.slate.comarticlesne3sand$oliticsassessment1///?5codyshearer .html( visited on )ecember #( ?12 18

)avid &eigel( /he Weirdest Story About a Conservative )bsession a Convicted !omber and /aylor S$ift 3ou Have *ver Read ( THE )AI0D EAST( August 2?( ?14 Bavailable at htt$333.

vii


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thedailybeast.comarticles?14?92?the3eirdeststoryaboutaconservativeobsessiona

convictedbomberandtaylors3iftyouhaveeverread.html( visited on A$ril 8( ?15 4?

"ose$h rean( ;*0ceedingly "olitical libel case "its free s"eech advocate *(ra 4evant against

;master of la$fare( -ATI:-A0 P:ST( :ctober 14( ?12 Bavailable at htt$ne3s.national$ost

.comne3scanadae>ceedingly$oliticallibelcase$itsfrees$eechadvocatee7ralevantagainstmasterofla3fare( visited A$ril 8( ?15 42

%ar' Singer( CITIJE- K THE )EEP0D &EI!) A%E!ICA- ":*!-ED :, !ETT K I%E!0I- B1//8

18

Patric' ,rey( !rett 6imberlin /hreatens to Sue e< 2%+A/*+ $ith Second *1ail from 6imberlin( PATTE!IC:S P:-TI,ICATI:-S( :ctober 1?( ?1? Bavailable at htt$$atterico.com

?1?1?11brett'imberlinthreatenstosueme( visited on A$ril 8( ?15 4?

!. "ose$h


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INTRODUCTION AND .UMMARY OF ARGUMENT

The )efendants include several victims of a crime called S&ATting. The term is

relatively ne3( and its definition can be debated( but in the case of the )efendants &al'er(1 ,rey

and Eric'son( this is 3hat ha$$ened Bu$on information and belief. Someone called the $olice

on different dates( im$ersonating one of the defendants( usually using a ;hac'er= techniLue to

tric' emergency services into believing he 3as calling from that defendants $hone number. In

each case( the im$ersonator falsely confessed to murdering the victims 3ife. In other 3ords(

someone called the $olice and said something to the effect of ;Im Aaron &al'er( and I Must shot

my 3ife.= This 3as done to invo'e a severe $olice reaction( $otentially including a S&AT team(

3hich is 3hy it is called ;S&ATting= and 3hy it is s$elled this 3ay. :bviously( this ;tric'= is

very dangerous.

These $eo$le are victims of a crime( and each has reason to sus$ect that the Plaintiff 3as

involved. *$on information and belief( ,rey( &al'er( Eric'son( and a fourth $erson( %i'e Stac'

B3ho is not $art of this suit( all $ublicly critici7ed the Plaintiff( a convicted drug 'ing$in and

terrorist 'no3n as ;The S$eed3ay omber.=2 They 3ere all S&ATted. In %r. &al'ers case( he

had 3on a legal victory against the Plaintiff on the same day he 3as S&ATted. ,urther( u$on

information and belief( a $erson using an IP address associated 3ith the Plaintiffs selfdescribed

friend &illiam Schmalfeldt threatened to S&AT )efendant &illiam Hoge III( another critic of

the Plaintiff( and another $erson seen arguing 3ith %r. Schmalfeldt on the internet 3as S&ATted

on the very evening of that argument. Additionally( the Plaintiffs selfidentified associate -eal

1 %r. &al'er refers to himself in the third $erson for stylistic $ur$oses and to de$ersonali7e thiscase. 2.S. v. 6imberlin( 9?5 ,. d 1?( 529 B#th Cir. 1/98.2 6imberlin v. White( # ,. 2d 5#( 59 B8th Cir. 1//2.


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!auhauser has been accused in another suit of ma'ing ;a veiled threat of S&ATting.=4 In other

3ords( the Plaintiff is suing victims of a crimeNeach of 3hom has good reason to sus$ect the

Plaintiff 3as involvedNfor $ointing out facts such as those laid out in the last t3o $aragra$hs.

-one of the )efendants have accused the Plaintiff of S&ATting them( but it is reasonable to

believe the Plaintiff is res$onsible B3ith cocons$irators. :$en investigations might still

$roduce an arrest 3arrant for the Plaintiff.

This la3suit is the latest stri'e in the Plaintiffs multiyear cam$aign to silence his critics.

The Plaintiffs goal is to $unish those 3ho have s$o'en out against him( those 3ho have s$o'en

to la3 enforcement see'ing to bring him to Mustice( and attorneys 3hose only ;crime= 3as the

$eaceful re$resentation of his ;enemies.= ,or instance( the root of his ire to3ard %r. &al'er is

that he dared to give $ro bono legal hel$ to one of the targets of the Plaintiffs abusive litigation

and %r. &al'ers refusal to be bullied. The root of his anger to3ard )efendant )an ac'er is he

dared to give r. Wal,er $ro bono legal hel$. Presumably( ne>t the Plaintiff 3ill be angry at the

la3yers 3ho re$resent the )efendants in this case. Thus( this la3suit re$resents an attem$t by

this Plaintiff to $unish $rotected s$eech( to $unish those 3ho 3ould s$ea' to la3 enforcement

about him( and to $unish la3yers for re$resenting his ;enemies.=

*nfortunately( as is the case in a motion to dismiss( this Court is reLuired to treat all 3ell

$leaded allegations in the Com$laint B;Com$l.= by this convicted $erMurer 5 as true. Still( ;Othe

3ell$leaded facts setting forth the cause of action must be $leaded 3ith sufficient s$ecificity+

bald assertions and conclusory statements by the $leader 3ill not suffice.= RRC v. !AA( 412 %d.

829( //4 A. d 42?( 424 B?1?. As this Court 3ill see( many of the allegations are only

su$$orted by such threadbare recitals( and others are not even su$$orted by that much.

4 See Amend. Com$l.( EC, -o. 5 at Q9# in c-ibney et al. v. Ret(laff et al.( -o. 14C6?1?5/

B?14.5 6imberlin v. +e$alt ( 1 ,. Su$$. d 49#( 4/? n. 8 B). %d 1//9.


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Indeed( in Ashcroft v. I#bal the Su$reme Court 3rote that ;O3e begin our analysis by

identifying the allegations in the com$laint that are not entitled to the assum$tion of truth.= 558

*.S. 88( 891 B??/. It might be useful for this Court to do the same( actually ta'ing a co$y of

the Com$laint( crossing out in red every allegation that is not entitled to a $resum$tion of truth

Band any irrelevant and fantastical allegations8 and then seeing if there is anything left in the

3hite s$aces that 3ould su$$ort any claim for relief.

&ithin those 3hite s$aces( the Plaintiff has failed to allege a single cause of action

against %r. &al'er or any other )efendant for nine maMor reasons. ,irst( the Plaintiff fails to

$ro$erly $lead false light( by 1 failing to $lead any false statement 3ith sufficient s$ecificity(

$leading instances of false light that fall outside the statute of limitations( 2 failing to $lead

malice( 4 failing to $lead causation of damages( and because 5 his re$utation is already so $oor(

it is inca$able of being further harmed. Second( the Plaintiff has failed to $lead invasion of

$rivacy by giving $ublicity to $rivate facts because he has not $led that they are $rivate or facts.

Third( the Plaintiff has failed to $lead intrusion into seclusion by failing to allege an im$ro$er

intrusion into a $rivate s$here. ,ourth( the Plaintiff has failed to $lead a$$ro$riation of li'eness

because he doesnt understand the nature of the tort( claiming absurdly that $eo$le he $reviously

claimed had sought to destroy his already demolished re$utation then sought to $rofit from his

good name. ,ifth( the Plaintiff has failed to $lead either tortious interference 3ith an e>isting

contract or 3ith business relations by failing to $ro$erly allege interference or that it 3as

tortious. Si>th( the Plaintiffs claim that %r. &al'er battered him is barred by collateral esto$$el(

8 *.g. Com$l. Q4#( s$inning an im$lausible and irrelevant tale 3here non$arty H


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t3ice( and also by the statute of limitations on the face of the Com$laint. Seventh( the Plaintiff is

also collaterally esto$$ed from $leading intentional infliction of emotional distress( and in any

case has failed to $lead outrageous conduct or a $hysical manifestation of distress( or that such

distress 3as caused by any tortious conduct by the )efendants. Eighth( Cons$iracy is not a

se$arate tort( and the Plaintiff has $led none of the elements of it. ,inally( and most

fundamentally( consistent 3ith the Plaintiffs tendency to abuse the legal system( the entirety of

this suit is barred by the $rinci$les of res Mudicata( and most of it is also barred by collateral

esto$$el he has already had his day in court( and he lost but continues to $ursue this case in bad

faith.

In short( the Plaintiff is barred from filing this suit and( in any event( has failed to state a

claim for 3hich relief can be granted for any of his claims. *nder %arylands AntiS0APP

statute( dismissal should be granted at the earliest o$$ortunity. In the name of Mudicial economy(

this dismissal should be granted to all )efendants for all claims 3ith $reMudice and( u$on further

motions( 3ith sanctions including a declaration that the Plaintiff is a ve>atious litigant.

PROCEDURAL HI.TORY

There is a com$licated history in this case $rior to its arrival before this Court and it is

3orth ta'ing a moment to revie3 it. This case re$resents the second action filed by the Plaintiff

ma'ing the maMority of these claims. :n :ctober 15( ?12( the same Plaintiff sued %r. &al'er

and around t3o do7en other defendants( including most of the )efendants in this case( # in federal

court. In it( the Plaintiff alleged violation of the !ac'eteering Influenced and Corru$t

:rgani7ations Act B;!IC:=( 19 *.S.C. 1/81 et seL( 4 *.S.C. F1/92( 4 *.S.C. F1/95( as 3ell

# The only difference bet3een the list of )efendants is that the Plaintiff is no3 clearly suing the

anonymous blogger 'no3n as Ace of S$ades 3hen $reviously he only sued the blog( and he is

suing


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as statela3 claims of defamation( false light invasion of $rivacy( tortious interference 3ith an

e>isting contract( tortious interference 3ith business relationshi$s( battery( and intentional

infliction of emotional distress. That case 3as initially ca$tioned 6imberlin v. 'ational !loggers

Club et al. 7I8( -o.


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Wal,er 7I8 -o. ?8?1SP??52/?1 B%d. %ont. Co. )ist. Ct. ?1. In a ,ebruary 9( ?1( $eace

order hearing( the )istrict Court found that %r. &al'er had not assaulted him( but had harassed

him. In a de novo a$$eal before this Court( the claim that %r. &al'er had harassed him 3as

dismissed by "udge Eric "ohnson Bno3 retired. 6imberlin v. Wal,er 7I8 -o. 9444) B%d. %ont.

Co. Cir. Ct. ?1. %ean3hile( on %ay ( ?1( the same Plaintiff sought a second $eace

order( claiming %r. &al'er had harassed him. )isregarding controlling Su$reme Court

$recedent by name( B!et. "udge 6aughey found that %r. &al'er had harassed the Plaintiff( and

forbade %r. &al'er from 3riting about %r. Kimberlin for si> months. 6imberlin v. Wal,er 7II8

-o. ?8?1SP?1/#/?1 B%d. %ont. Co. )ist. Ct. ?1. This 3as modified immediately u$on

a$$eal to the Circuit Court because it 3as in violation of %r. &al'ers right to free e>$ression /

and at a de novo hearing the remainder of the $eace order 3as dismissed. 6imberlin v. Wal,er

7II8 -o. 958) B%d. %ont. Co. Cir. Ct. ?1.

,inally( on August 2?( ?12( %r. Kimberlin sued %essrs. &al'er( Hoge( A'bar and three

other $ersons not a $arty to this case in 6imberlin v. Wal,er et al. -o. 29?/886 B%d. %ont. Co.

Cir. Ct. ?12( filed in this court.1? 6imberlin v. Wal,er et al. had counts alleging harassment(

stal'ing( malicious $rosecution Binvolving the same suits he com$lains about here( abuse of

legal $rocess( defamation( false light( and intentional infliction of emotional distress. All but the

counts for defamation and false light 3ere dismissed on motion for summary Mudgment. Those

remaining counts 3ent to trial( and at the conclusion of the Plaintiffs case( the Mudge issued a

directed verdict in the )efendants favor. A certified co$y of the com$laint 3as filed in

/ :n the same day this $eace order 3as modified( restoring %r. &al'ers freedom of e>$ression(

%r. &al'er 3as S&ATted.1? y the Plaintiffs o3n descri$tion( 6imberlin v. Wal,er et al. 3as ;related= to 6imberlin v. '!C et al. See Plaintiffs ;-otification of !elated Court !uling(= EC, -o. 2 in 6imberlin v.

'!C et al. 7I8 Binforming the court that 6imberlin v. Wal,er et al. had survived a motion to

dismiss.

8


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6imberlin v. '!C et al.( E>hibit C to ;)efendant Hoges !e$ly to EC, -o. 21( Plaintiff

:mnibus :$$osition to %otions to )ismiss= BEC, -o. 28 and a courtesy co$y is attached as

E>hibit A. A certified co$y of the transcri$t of the "uly 1( ?14 hearing 3here most of the claims

3ere dismissed on summary Mudgment is attached as E>hibit . A certified co$y of the entire

trial transcri$t is attached as E>hibits C and ). There is a great deal of overla$ bet3een

6imberlin v. Wal,er et al. and the instant la3suit( and "udge Eric "ohnson ruled in favor of the

)efendants on the most substantive basis $ossible truth. S$ecifically( he stated that ;Otheres

not one scintilla of evidence in this case that the statements that 3ere made by these individuals

3ere false.= E>hibit )( $. 88.

That brings us to the $resent suit.

I"

E*ERY CAU.E OF ACTION I. BARRED BY RE. 2UDICATA

The Plaintiffs $rior defeat in 6imberlin v. Wal,er et al. bars the entirety of this litigation(

both for %r. &al'er and for all )efendants. In Cochran v. -riffith *nergy( 48 %d. 124( 42 A. 2d

///( 1?? B?1 the %aryland Court of A$$eals $rovided a three $rong test for 3hen res

Mudicata a$$lies under %aryland la3( reLuiring that

B1 the $arties in the $resent litigation are the same or in $rivity 3ith the $arties tothe earlier litigation+ B the claim $resented in the current action is identical to

that determined or that 3hich could have been raised and determined in the $rior

litigation+ and B2 there 3as a final Mudgment on the merits in the $rior litigation.

Every single one of these factors are $resent in the instant action bet3een %r. &al'er and the

Plaintiff. In relation to the first factor( the same %r. &al'er and %r. Kimberlin are $resent in

both 6imberlin v. Wal,er et al.( and the instant action. !egarding to the second factor( nothing

3ould have $revented the Plaintiff from amending his com$laint in 6imberlin v. Wal,er et al.( to

include every single cause of action asserted in the instant suit and thus these claims ;could have

#


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been raised and determined in the $rior litigation.= Indeed( several of the claims are $recisely

identical. &ith res$ect to the final factor( the directed verdict re$resented a final Mudgment on the

merits. Therefore( having met all three $rongs of the test for the a$$lication of res Mudicata( the

current suit is barred.

This alone is sufficient reason to dismiss the case for %r. &al'er( and( in the name of

Mudicial economy( %essrs. Hoge( A'bar and every other defendant in this case. %r. Hoge and

%r. A'bar should be dismissed because they 3ere also defendants in 6imberlin v. Wal,er et al.

As for the remaining )efendants( courts have regularly held that 3hen defendants are alleged to

be in a cons$iracy 3ith each other by a $laintiff( they are in $rivity for the $ur$ose of defensive

res Mudicata.11 In other 3ords( 3hile this memorandum 3ill demonstrate that the Plaintiff has not

made $ro$er( nonconclusory allegations that some or all of the )efendants have cons$ired

together for the $ur$ose of stating a claim for 3hich relief can be granted( infra at $. 29( the mere

fact that the Plaintiff has alleged that one e>ists( Com$l. Q19/1/1( esto$s him from denying it

for res Mudicata $ur$oses. Every remaining )efendant is alleged to be in a civil cons$iracy

together and( therefore( dismissal is a$$ro$riate for all )efendants under res Mudicata. In short( if

the Plaintiff really believes that the )efendants all cons$ired together to harm him( then he

should have sued all of them the first time.

11 See e.g. +iscon Inc. v. 'yne0 Cor".( 98 ,. Su$$. d 154( 188 B&.).-.D. ??? B;alleged co

cons$irators are Rin $rivity 3ith one another for res Mudicata $ur$oses=( In re /eletronics( #8,(.d 195( 1/ Bnd Cir. 1/94 Balleged cocons$irator 3as in $rivity for res Mudicata $ur$oses(

-oel v. Heller ( 88# ,.Su$$. 144( 15 B).-.".( 1/9# Brelying on Plaintiffs $leadings to establish

cocons$irator $rivity for res Mudicata $ur$oses( c4aughlin v. !radlee( 5// ,.Su$$. 92/( 94#B).).C. 1/94( !usse v. Steele( ?1? &0 29/4559( at B%.). ,la. Aug. 19( ?1?( -amboc( v.

3elencsics( 489 ,.d 92#( 941 B2 rd Cir. 1/#( Ananiev v. Freitas( ?14 &0 14??95#( at /

B).).C. A$r. 11( ?14( and Airframe Sys. Inc. v. Raytheon Co.( 8?1 ,.2d /( 1# B1st Cir. ?1?.

9


17/52

II"

THE PLAINTIFF I. COLLATERALLY E.TOPPED FROM CLAIMING THAT

MR" /ALKER BATTERED HIM, OR INTENTIONALLY INFLICTED EMOTIONAL

DI.TRE.. UPON HIM3 AND THE PLAINTIFF AL.O I. E.TOPPED FROM DENYING

THAT THE PLAINTIFF TRIED TO FRAME MR" /ALKER FOR THAT NON1

A..AULT, THE PLAINTIFF CO.T MR" /ALKER HI. 2OB, AND THATTHE PLAINTIFF I. A PEDOPHILE

Even if res Mudicata didnt a$$ly( the other effect of the conclusion of 6imberlin v. Wal,er

et al. is that collateral esto$$el attaches to every Luestion that 3as litigated in that case. In

Cosby v. +e"t of Human Res.( the Court of A$$eals laid out four elements reLuired for collateral

esto$$el

1. &as the issue decided in the $rior adMudication identical 3ith the one $resented in the action in Luestion

. &as there a final Mudgment on the merits

2. &as the $arty against 3hom the $lea is asserted a $arty or in $rivity 3ith a $arty to the $rior adMudication

4. &as the $arty against 3hom the $lea is asserted given a fair o$$ortunity to

be heard on the issue

45 %d. 8/( 4 A.2d 5/8( 8? B%d. ?1. In 6imberlin v. Wal,er et al.( the Plaintiff 3as

allo3ed to attem$t to $rove that he 3as defamed or $ut in a false light by any of the follo3ing

categories of assertions that the Plaintiff cost %r. &al'er his Mob+ that %r. &al'er didnt batter

the Plaintiff and the Plaintiff attem$ted to frame %r. &al'er for that crime+ that the Plaintiff is a

$edo$hile+ that the Plaintiff seduced his future 3ife 3hen she 3as fourteen years old Band he 3as

in his forties and continued that se>ual relationshi$ until she became of age+ and that he

attem$ted to seduce %rs. Kimberlins thent3elveyearold cousin.1 The Plaintiff failed to

$rove he had been defamed or $ut in a false light for the most substantive reason $ossible. The

defendants in 6imberlin v. Wal,er et al. didnt deny ma'ing these statementsNthey freely

1 The relevance of the Plaintiffs $edo$hiliarelated esto$$el comes in 3hen discussing the

argument that the Plaintiff is defamation$roof. See infra $. 121/.

/


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admitted to them. Instead( the court found that ;Otheres not one scintilla of evidence in this

case that the statements that 3ere made by these individuals 3ere false.= E>hibit )( $. 88. 12

-o3 the Plaintiff comes to this Court claiming that it is someho3 defamation( or $lacing

him in a false light( to claim that 1 he cost %r. &al'er his Mob( or %r. &al'er didnt assault

him and the Plaintiff actually attem$ted to frame him for this crime. These issues are identical

bet3een the instant suit and 6imberlin v. Wal,er et al.( meeting the first $art of the test for the

a$$lication collateral esto$$el. 0i'e3ise( "udge "ohnsons ruling meets the reLuirement that

there be a final Mudgment( meeting the second $rong of the test. The Plaintiff is the same $erson(

meeting the third $art of the test for collateral esto$$el( and the Plaintiff 3as given every

o$$ortunity to be heard meeting the fourth.

Collateral esto$$el also a$$lies eLually to the Luestion of $hether %r. &al'er battered

the Plaintiff on "anuary /( ?1( because of the outcome of 6imberlin v. Wal,er et al . In that

case( %r. &al'er freely admitted in court that he stated that he did not batter the Plaintiff 14 and(

therefore( any evidence the Plaintiff $roduced $ur$orting to sho3 an assault or inMury 3as

necessarily forged or altered in an attem$t to frame him for a crime. To sho3 %r. &al'er

defamed him or $ut him in a false light( the Plaintiff 3ould have had to $rove %r. &al'ers

assertions false. The only 3ay that the Plaintiff could have $roven this statement false 3as to

$rove that %r. &al'er had battered him and( indeed( hos$itali7ed him. Having failed to $rove

such battery and( therefore( any falsehoods about such alleged battery( the Plaintiff cannot re

litigate the issue here.

12 /elni,off v. atusevitch( 24# %d. 581( #? A. d 2?( 48 B1//# B;in all defamation actions(

truth is no longer an affirmative defense to be established by the defendant( but instead the

burden of $roving falsity rests u$on the $laintiff= Binternal citations and Luotation mar's

omitted.14 %r. &al'er stated that his only contact 3ith the Plaintiff or his $ro$erty 3as in removing the

Plaintiffs iPad from his hands 3ithout inMury( and that this 3as done in selfdefense.

1?


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In fact( the issue of the alleged assault is t3ice esto$$ed. As noted above( 6imberlin v.

Wal,er ( et al. 3as not the first time the Plaintiff has attem$ted to litigate this issue. &ithin half

an hour of the alleged battery( on "anuary /( ?12Nbefore the Plaintiff claimed to have gone to

the hos$italNthe Plaintiff filed for a Peace :rder in %ontgomery County )istrict Court

asserting that %r. &al'er had assaulted and harassed him. 6imberlin v. Wal,er 7I8 -o.

?8?1SP??52/?1 B%d. %ont. Co. )ist. Ct. ?1. In an e> $arte tem$orary $eace order

hearing Balso before he claimed he 3ent to the hos$ital( the court held that assault Bas defined in

%). C:)E crim. la3 F2?1 and harassment had occurred. Then( on ,ebruary 9( ?1( a final

$eace order hearing 3as held 3ith both $arties $resent( and the court determined that 3hile

harassment had occurred( no assault had occurred. 15 An a$$eal in %ontgomery County Circuit

Court also found that no harassment had occurred and dismissed the entire $etition. %r.

Kimberlin 3as at all times granted a full o$$ortunity to $resent evidence and ma'e his claims+

the Mudge sim$ly believed %r. &al'er. Therefore( the matter is settled in %r. &al'ers favor( and

he shouldnt be forced to litigate the matter yet again.

,inally( collateral esto$$el a$$lies to the Luestion of 3hether %r. &al'er intentionally

inflicted emotional distress on the Plaintiff or engaged in malicious $rosecution.18 oth of these

claims 3ere $art of the original com$laint in 6imberlin v. Wal,er et al.( and 3ere dismissed in a

motion for summary Mudgment hearing on "uly 1( ?14. Accordingly( the claims that %r. &al'er

battered the Plaintiff( maliciously $rosecuted the Plaintiff( intentionally inflicted emotional

15 A certified co$y of the $eace order $etition( as 3ell as the tem$orary $eace order and the final

$eace order Bdetermining that no battery occurred 3as attached as E>hibit A to %r. &al'er first

re$ly in relation to a motion dismiss the Plaintiffs ,irst Amended Com$laint in 6imberlin v.

'!C 7I8 et al. and can be vie3ed on PACE! at EC, no. 55. ,or this Courts courtesy( a co$y of

this document is attached as E>hibit E.18 This is mentioned because the Plaintiff often claims that %r. &al'er has engaged in malicious

$rosecution throughout his com$laint.

11


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distress u$on the Plaintiff( or that any )efendant defamed him or $laced him in a false light by

claiming that 1 the Plaintiff cost %r. &al'er his Mob( attem$ted to frame him for a crime( or 2

the Plaintiff is a $edo$hile 3ho attem$ted to seduce girls as young as t3elve( is barred by

collateral esto$$el.

III"

THE PLAINTIFF FAIL. TO PROPERLY PLEAD FAL.E LIGHT

*nder %aryland 0a3( the elements of false light invasion of $rivacy are defined as

follo3s

:ne 3ho gives $ublicity to a matter concerning another that $laces the other

before the $ublic in a false light is subMect to liability to the other for invasion of his $rivacy( if

Ba the false light in 3hich the other $erson 3as $laced 3ould be highly

offensive to a reasonable $erson( and

Bb the actor had 'no3ledge of or acted in rec'less disregard as to the

falsity of the $ublici7ed matter and the false light in 3hich the other 3ould

be $laced.

!ag$ell v. %eninsula Regional edical ( 1?8 %d.A$$. 4#?( 512514 B1//5. In addition to these

elements that are common to most states( %aryland im$oses a second( higher burden. As stated

in %iscatelli v. 9an Smith( ;Oan allegation of false light must meet the same legal standards as an

allegation of defamation.= 25 A.2d 114?( 11484#( 44 %d. /4 B?1 Bciting Harnish v.

Herald5ail Co.( 84 %d. 28( 22#( 98 A.d 148( 15U52 B1/#+ %hilli"s v. Wash. aga(ine

Inc.( 59 %d.A$$. 2?( 28 n. 1( 4# A.d /9( 1?1 n. 1 B1/94. Accordingly( ;Oin %aryland( a

claim for false light invasion of $rivacy may not stand unless the claim also meets the standards

for defamation(= Cro$ley v. Fo0 !roadcasting Co.( 951 ,.Su$$. #??( #?4 B). %d.( 1//4.

This means that any reLuirement or doctrine that might a$$ear at first glance to a$$ly

solely as a bar to defamation actions( o$erates eLually to bar false light actions. These include

1


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1 the reLuirement of s$ecificity in $leading( a shorter statute of limitations( and 2 the

doctrine of defamation$roof $laintiffs. The Plaintiff has indeed failed to $lead 3ith sufficient

s$ecificity each instance of alleged false light. He has included statements that( on the face of

his com$laint( fall outside the statute of limitations. ,urthermore( this Plaintiff has engaged in

such re$rehensible behavior in the $ast that he has made it im$ossible to noticeably harm his

re$utation further he is defamation$roof.

,inally( in addition to these failings( the Plaintiff has failed to $ro$erly $lead malice. He

says various forms of the 3ord ;malice= no3 and then in a conclusory manner( but he does not

$lead facts and circumstances that( if true( 3ould lead this Court to conclude that %r. &al'erNor

any of the )efendantsNmet the test for malice. Indeed( the Plaintiff himself seems to be unsure

3hether the allegations the )efendants made 3ere false( simultaneously claiming that these

statements include $rivate facts the )efendants should not have $ublici7ed. See infra at $$. 8

9. ,or all of these reasons( the Plaintiff has failed to $ro$erly $lead false light( and( therefore(

this claim should be dismissed.

A" T4e Plainti i# Deamati$n1Pr$$ an-, T4ere$re, N$ Ca#e $ A5ti$n Can Lie F$r

Fal#e Li+4t In!a#i$n $ Pri!a56

As noted above( no claim can lie for false light that cannot lie for defamation.

)efamation( in turn( is about the right to $rotect ones re$utation from harm. ;)efamation( made

u$ of the t3in torts of libel and slander( is an invasion of the right of $ersonal security in

re$utation and good name.= -eneral otors Cor". v. %is,or ( # %d.A$$. /5( 112( 24? A.d #8#(

B1/#5 Bciting &. Prosser( 0A& :, T:!TS F 111( at #2#( B4th ed.( 1/#1 revd on other grounds(

## %d. 185( 25 A.d 91? B1/#8. Thus( if there is no harm to re$utation( there is no cause of

action for defamation.

12


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To say that the Plaintiff has already damaged his re$utation is an understatement. The

Plaintiff is an e>tremely violent felon 3ith an e>tensive criminal history. %ost significantly( the

Plaintiff is a convicted terrorist

Kimberlin 3as convicted as the socalled ;S$eed3ay omber(= 3ho terrori7ed the

city of S$eed3ay( Indiana( by detonating a series of e>$losives in early Se$tember

1/#9. In the 3orst incident( Kimberlin $laced one of his bombs in a gym bag( andleft it in a $ar'ing lot outside S$eed3ay High School. Carl )elong 3as leaving

the high school football game 3ith his 3ife 3hen he attem$ted to $ic' u$ the bag

and it e>$loded. The blast tore off his lo3er right leg and t3o fingers( and

embedded bomb fragments in his 3ifes leg. He 3as hos$itali7ed for si> 3ee's(during 3hich he 3as forced to undergo nine o$erations to com$lete the

am$utation of his leg( reattach t3o fingers( re$air damage to his inner ear( and

remove bomb fragments from his stomach( chest( and arm. In ,ebruary 1/92( he

committed suicide.

6imberlin v. White( # ,. 2d 5#( 59/ B8 th Cir. 1//2. %r. )e0ongs 3ido3 3on a Mudgment

against the Plaintiff in civil court( 6imberlin v. +e4ong ( 82# -.E.d 11 BInd. Su$. Ct. 1//4(

3hich the Plaintiff $roceeded to cheat her out of( his conduct becoming so outrageous that his

$arole 3as revo'ed because of it. 6imberlin v. +e$alt ( 1 ,. Su$$. d 49# B). %d. 1//9. He

sued this 3ido3( ;her la3yer( the $robation officer( and various ureau of Prisons and

)e$artment of "ustice officials(= id . at 4/?( for attem$ting to collect this debt. See also

6imberlin v. +)J ( #99 ,. d 424 B#th Cir. 1/98 Baffirming dismissal of that suit. All that is in

addition to being a convicted $erMurer( +e$alt ( 1 ,. Su$$. d at 4/? n. 8( and drug smuggler

2.S. v. 6imberlin( 9?5 ,. d at 529. To claim that any )efendant harmed the re$utation of a

man such as the Plaintiff is farcical.

Ho3ever( many Murisdictions have refused to allo3 such a farce to go on( holding that

such a $laintiff can so harm his re$utation that it is not ca$able of being measurably harmed any

further( thus becoming defamation$roof Bor ;libel$roof=. This Court should do the same.

Particularly instructive on this $oint is Cardillo v. +oubleday & Co. Inc.( 519 ,. d 829 Bnd Cir.

14


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1/#5. Cardillo involved claims of defamation( and that $laintiff also had an e>tensive ra$ sheet

that 3as described as follo3s

a$$ellant is serving 1 years( sentenced for assorted federal felonies( including

se$arate convictions for stolen securities and bailMum$ing in the *nited States)istrict Court for the Southern )istrict of ,lorida( bailMum$ing in the )istrict of

%aryland( and cons$iracy and interstate trans$ortation of stolen securities in the

)istrict of -e3 Ham$shire. He has been $reviously convicted of receiving stolen $ro$erty and numerous minor infractions of the la3 in %assachusetts 3here he

lived. His ans3ers to interrogatories indicate that he 3as in Omobster 6incent

Teresas com$any ;freLuently= from 1/828/... and 3as directly involved= 3ith

Teresa ;in several minor crimes( none of 3hich 3ere note3orthy or $rofitable.=

Id. at 84?.

In Cardillo( the Second Circuit concluded that the $laintiffs ra$ sheet 3as sufficient to

render him defamation$roof as follo3s

3e consider as a matter of la3 that a$$ellant is( for $ur$oses of this case( libel

$roof( i. e.( so unli'ely by virtue of his life as a habitual criminal to be able torecover anything other than nominal damages as to 3arrant dismissal of the case(

involving as it does ,irst Amendment considerations.

519 ,. d at 82/. See also Jac,son v. 4ongsco"e( 2/4 %ass. 5## B1/95 Bstating the $er$etrator

of ;the hitchhi'e murders= 3as defamation$roof and Ray v. /ime Inc.( 45 ,. Su$$. 819 B&.).

Tenn.1/#8 Ba$$lying the defamation$roof doctrine to "ames Earl !ay( the murderer of !ev.

%artin 0uther King( "r.. If !obert Cardillos history of mainly nonviolent offenses of little

fame rendered him defamation$roof( then certainly a convicted bomber 3ho terrori7ed an entire

to3n for nearly a 3ee' and ultimately cost a man his lifeNnot to mention his activities as a drug

'ing$inNshould render the instant Plaintiff eLually defamation$roof.

,urther( since the o$erative Luestion is 3hether the alleged defamation could actually

damage a $laintiffs re$utation or if the damage had already been done( courts have also held that

$rior negative $ublicity should be ta'en into account 3hen considering 3hether one is

defamation$roof. S$ate v. Schiffers( /#5 S.&.d #?( #4 BTe>. A$$.( 4 th )ist. 1//9 B;the earlier

15


24/52

ne3s$a$er articles and the disci$linary orders describe conduct that 3ould have ruined S3ates

re$utation $rior to the $ublication of Schifferss article.=. In 1///( Slate maga7ine called the

Plaintiff a ;habitual liar( and allaround socio$ath.=1# A ne3s$a$er article $ublished Must after his

convictions for the S$eed3ay ombings accused the Plaintiff of $lotting behind bars to B1 frame

someone else for his crimes( B arrange for the murder of one of his $rosecutors and several

other $ersons( and B2 to attem$t to destroy the $olitical career of the same $rosecutor in a sting

o$eration.19 A boo' 3ritten 3ith the Plaintiffs hel$ by %ar' Singer insinuated that he 3as a

$edo$hile engaged in a relationshi$ 3ith a ten year old girl named )ebbie arton.1/ This

authori7ed biogra$hy( +e$alt ( 1 ,. Su$$. d at 4/?/1( also suggested that he 3as involved in

the murder of "ulia Scy$hers( the grandmother of the young sus$ected victim( CITIJE- K at 9 et

se#( and that the bombings 3ere committed in order to distract the $olice from that murder( id. at

9/ et se#.? Singers boo' also accuses Kimberlin of ve>atious litigation1 and features

Kimberlin s$ea'ing in detail about his life as a drug 'ing$in BCITIJE- K at 8?81 and "assim(

confessing to ta> evasion Bid. at 818( confessing to a racist $rison fight 3here he called his

1# A.:. Scott( Cody Shearer: If He +idnt *0ist the 9ast Right Wing Cons"iracy Would Have Invented Him( S0ATE( %ay ( 1/// Bavailable at htt$333.slate.comarticles

ne3sand$oliticsassessment1///?5codyshearer.html( visited on )ecember #( ?12.19 !. "ose$h


25/52

o$$onent the ;n3ord= re$eatedly Bid. at 192+ and confessing to sabotaging military eLui$ment

thus $lacing our troo$s in danger Bid. at 194.

Indeed( the Plaintiffs recent litigation itself has further harmed his re$utation. In

6imberlin v. '!C et al. 7I8( the same Plaintiff 3as caught redhanded forging a summons. The

Plaintiff $rotested innocence( a claim that 3as vitiated 3hen he 3as caught altering another

document in 6imberlin v. Wal,er et al.B Also( there is the harm to his re$utation caused by the

outcome in 6imberlin v. Wal,er et al. itself. As noted above( follo3ing the Plaintiffs defeat in

6imberlin v. Wal,er et al.( he is collaterally esto$$ed from denying Bfor defamation $ur$oses 1

that he attem$ted to frame %r. &al'er for a crime+ that he is a $edo$hile+ 2 that he seduced

his 3ife 3hen she 3as fourteen and he 3as in his forties+ and 4 that he also attem$ted to seduce

a t3elve year old girl around that time. That is( any $erson can re$ort these claims as fact( and

the Plaintiff is esto$$ed from claiming in a defamation suit that they are false. :ne need only

loo' to the Plaintiffs 3ords to establish that those claimsN3hich the Plaintiff cannot claim is

untrueNhave harmed his re$utation. The )efendant has re$eatedly claimed that because of the

accusations that he is a $edo$hile( his eldest daughter can no longer hold slee$overs in his home

to his great chagrin. See( e.g.( E>hibit ( $. 4?( lines 14.

E>actly 3hat negative conclusions does the Plaintiff thin' a reader 3ill dra3 about him

based on allegedly im$lied involvement in S&ATtings That he is ca$able of acting 3ith

indifference to human life 0eaving a bomb near a high school football game so that Carl

)e0ong could find it and blo3 off his leg 3ould have already $roven that to the readers

See ;6erified !es$onse to ,ebruary 1( ?14 :rder to Sho3 Cause !e T3itchy Summons(=

EC, -o. 1? Badmitting to forging a summons in this case but $leading that he 3as someho3ignorant of the fact that forging a court document 3as 3rong.2 ;Su$$lemental %emorandum of )efendants %ichelle %al'in and T3itchy in Su$$ort of

!eLuest for )ismissal= BEC, -o. 14 Bdocumenting ho3 the Plaintiff admitted to a forgery in

6imberlin v. Wal,er et al..

1#


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satisfaction( as 3ould his sabotage of military eLui$ment( the alleged Mailhouse murder $lots( and

the sus$icion of involvement in the murder of "ulia Scy$hers. )oes he thin' he 3as defamed by

the suggestion that he 3ould be involved in deceiving la3 enforcement The $reviously

$ublished re$orts that he tried to frame someone else for the S$eed3ay ombings( the

adMudication that he did try to frame %r. &al'er for a crime( as 3ell as %ar' Singers suggestion

that he committed the S$eed3ay ombings in order to deflect the $olice from investigating the

murder of "ulia Scy$hers establishes that.

:r consider the s$ecific harm that %r. Kimberlin alleges that the )efendants have done

to his re$utation( claiming in Com$l. Q124( the )efendants conduct ;ma'eOs Plaintiff a$$ear

odious( infamous andor frightening.= Any $erson familiar 3ith his $roven career in crime is

li'ely to dra3 the same conclusion.4 :ne doesnt need to accuse a man 3ho earned the

nic'name of ;The S$eed3ay omber= of S&ATting to ma'e $eo$le thin' he is odious(

infamous( and frightening. A $erusal of $ublicly available court records is sufficient. The

Plaintiffs re$utation is so $oor it is difficult( if not im$ossible( to harm it further.

As the Su$reme Court made clear as recently as ?1( the state does not have a general

$o3er to $rohibit falsehoods.5 ,or instance( in 2.S. v. Alvare( ( 12 S. Ct. 52# B?1( the

Su$reme Court 3as confronted 3ith a man 3ho falsely and des$icably claimed he had served in

the %arines and 3as a reci$ient of the Congressional %edal of Honor. The government had

sought to $rosecute him under the Stolen 6alor Act 3hich $unished falsehoods about military

service. The Su$reme Court struc' do3n the act under the strict scrutiny standard( e.g. %erry

*d. Assn. v. %erry 4ocal *ducators Assn.( 48? *.S. 2# B1/92 Ba contentbased restriction on

4 0i'e3ise( those $arents 3ho are allegedly refusing to allo3 their underage daughters to slee$

over at %r. Kimberlins house seem to have also decided that he 3as ;frightening= a$art from

any the alleged instances of false light or defamation in this case.5 %r. &al'er maintains he has never 'no3ingly $ublished a falsehood about %r. Kimberlin.

19


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s$eech can only be u$held if it is ;necessary to serve a com$elling state interest and... narro3ly

dra3n to achieve that end=. !eMecting the vie3 that there ;is any general e>ce$tion to the ,irst

Amendment for false statements(= 12 S. Ct. at 544( the Alvare( court found there 3as no

com$elling interest in $reventing falsehoods that do not harm others.

:rdinarily( $reventing defamation is a com$elling state interest because of the harm done

to a victims re$utation. Alvare( ( 12 S. Ct. 545. Ho3ever( in this $articular and uniLue case(

there is nothing com$elling about $rotecting this Plaintiffs re$utation. As in Cardillo( the

instant Plaintiff might at best obtain nominal damages( and $reventing a nominal harm cannot be

a com$elling interest. !ather( if the Plaintiff feels someone has said something false about him(

he can a$$eal to the same court of $ublic o$inion as the )efendants have. ;The theory of our

Constitution(= the Alvare( court e>$lained( ;is that the best test of truth is the $o3er of the

thought to get itself acce$ted in the com$etition of the mar'etO.= 12 S. Ct. at 55? Binternal

Luotations and citations omitted. That is 3here the Plaintiffs grievances( real or imagined(

belongNand not in this courthouse.

Therefore( no claim can lie for defamation and if a claim cannot lie for defamation( it

cannot lie for false light( either. %iscatelli 25 A.2d at 11484#. ,or this reason alone( all claims

based on false light should be dismissed.8

B" T4e Plainti Fail# t$ Plea- Fal#e Li+4t 7it4 .i5ient .8e5ii5it6

As noted above( a false light claim 3ill fail if it cannot meet the standards for defamation.

In %iscatelli( the Court of A$$eals e>$lained that

In order to $lead $ro$erly a defamation claim under %aryland la3( a $laintiff

must allege s"ecific facts establishing four elements to the satisfaction of the fact

8 %r. &al'er doesnt address defamation se$arately from false light because the Plaintiffs claim

for defamation is solely against %r. A'bar and -ational loggers Club B-C. Ho3ever( this

doctrine necessarily a$$lies to defamation actions( Mustifying dismissal of the defamation claims

against those t3o defendants sua s$onte in the name of Mudicial economy.

1/


28/52

finder ;VB1 that the defendant made a defamatory statement to a third $erson( B

that the statement 3as false( B2 that the defendant 3as legally at fault in ma'ing

the statement( and B4 that the $laintiff thereby suffered harm.=

25 A.2d at 114# Bem$hasis added. That means in each instance the Plaintiff must $rovide a

;s$ecific descri$tion of the content of the alleged statements(= as 3ell as ;3hen and ho3 they

3ere communicated.= !ro$n v. Ferguson *nters. Inc.( -o. 1C6191#CC at 5 B). %d.

)ec. 11( ?1.# In short( the Plaintiff must allege 3ho( 3hat( 3here( 3hen( and 3hy in relation

to each alleged defamatory statement. The $ur$ose of this rule is to give the court enough

information to determine for itself 3hether the alleged statements actually have $otential

defamatory meaning. In this 3ay the Court can determine at an earlier stage in litigation 3hether

the e>$ression in Luestion is la3ful( in line 3ith the $olicy behind %) C:)E Cts. G "ud. Proc.

F59?# Bdisfavoring la3suits designed to su$$ress free e>$ression. This( in turn( $romotes the

values enca$sulated by the ,irst Amendment and in Article 4? of the %aryland )eclaration of

!ights by ensuring that those 3ho engage in $rotected s$eech are not subMected to $rotracted and

frivolous civil actions as a result of engaging in constitutionally $rotected s$eech. The Plaintiff

serially fails to meet this reLuirement of s$ecificity( both in relation to %r. &al'er and in relation

to all of the other )efendants and( therefore( fails to $ro$erly allege that the s$eech is defamatory

and un$rotected by the ,irst Amendment.

It is $articularly im$ortant to reLuire the Plaintiff to $lead 3hen such statements occurred

because %) C:)E Cts. G "ud. Proc. F51?9 states that ;Oan action for assault( libel( or slander

shall be filed 3ithin one year from the date it accrues.= That statute of limitations 3as tolled on

# See also +avidson1'ad$odny v. Wal1art Assoc. Inc. ??9 &0 415?25 at 5 B). %d. ??9Bdismissing a defamation case under %aryland la3 because it ;does not s$ecify 3hat actual

defamatory statements 3ere made by defendants... and to 3hom the statements 3ere made=+

Holt v. Camus( 19 ,.Su$$.d 91/( 9? B). %d.( ??? BreLuiring a $laintiff $leading defamationand false light to allege ;3hat 3as said( and the time( $lace and circumstances of the statement=+

-ainsburg v. Steben & Co.( 929 ,.Su$$.d 22/( 244 B). %d. ?11 Bstating that ;a $laintiff must

s$ecifically allege= each ;se$arate instance of defamation=.

?


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:ctober 15( ?12( 3hen 6imberlin v. '!C 7I8 3as filed in ,ederal Court. Although F51?9

doesnt s$ecifically mention false light( Smith v. *s#uire Inc.( 4/4 ,.Su$$. /8#( /8/ B). %)(

1/9? held that 3hen ;a false light claim is essentially analogous to a libel claim... Oit should be

governed by the same statute of limitations.= &hile Smith 3as reMected by the Court of S$ecial

A$$eals in Allen v. !ethlehem Steel Cor".( #8 %d. A$$. 84 B1/99( Allen is itself in conflict

3ith the Court of A$$eals declaration in %iscatelli that ;Oan allegation of false light must meet

the same legal standards as an allegation of defamation.= 25 A.2d at 11484#. 0i'e3ise( virtually

every other Murisdiction that has faced the same dilemma Ba shorter statute of limitations for

defamation than false light invasion of $rivacy has a$$lied the shorter statute of limitations for

defamation to false light claims.9 This Court is( therefore( urged to reMect Allen and follo3

Smith( the authorities in other states and the cues of the Court of A$$eals in %iscatelli( and a$$ly

the oneyear statute of limitations for all false light claims.

,inally( in all cases the Plaintiff must allege malice. The 3ord ;malice= is not used in

!ag$ells descri$tion of the elements of false light( it does state that in order to establish false

light the Plaintiff must sho3 Bin $art that ;the actor had ,no$ledge of or acted in rec,less

disregard as to the falsity of the $ublici7ed matterO.= 1?8 %d.A$$. at 512514 Bem$hasis

added. This is $recisely the same as the malice standard enunciated in 'e$ 3or, /imes Co. v.

Sullivan( 2#8 *.S. 54( 9? B1/84 that the statement be made ;3ith 'no3ledge that it 3as false

or 3ith rec'less disregard of 3hether it 3as false or not.= Therefore( in order to $lead false light(

the Plaintiff must $ro$erly allege malice.

9 See S$an v. !oard$al, Regency Cor".( 4?# -.". Su$er. 1?9( /8/ A.d 1145 B-.". Su$er.(??/+ *ast$ood v. Cascade !roadcasting Co.( 1?8 &ash.d 488( # P.d 1/5( 1// B1/98+

Fello$s v. 'ational *n#uirer Inc.( 4 Cal.2d 24( 9 Cal.!$tr. 15( 5 n. 1( #1 P.d /#( 1?8

n. 1 B1/98+ Covington v. /he Houston %ost ( #42 S.&.d 245( 249 BTe>.Ct.A$$.1/9#+ -annett Co. Inc. v. Anderson( /4# So.d 1 B,la. A$$.( ??8+ agenis v. Fisher !roadcasting Inc.( 1?2

:r.A$$. 555( #/9 P.d 11?8 B1//?+ -ashgai v. 4eibo$it( ( #?2 ,.d 1? B1st Cir.1/92+ 2hl v.

Columbia !roadcasting Systems( 4#8 ,.Su$$. 1124( 112# B&.).Pa.1/#/.

1


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In any case( the Plaintiff has alleged three general categories of statements that allegedly

$laced him in a false light statements relating to 1 S&ATting( the loss of %r. &al'ers Mob(

and 2 the alleged assault by %r. &al'er against the Plaintiff. In each case( the Plaintiff has

failed to $ro$erly $lead false light.

1. The Plaintiff ,ails to Pro$erly Plead ,alse 0ight in !elation to S&ATting

The Plaintiff fails to ma'e meet the $articularity reLuirements in relation to any of the

alleged statements that the Plaintiff S&ATted )efendants ,rey( Eric'son( or &al'er. &hile this

memorandum 3ill not go into detail relating to the failures of each $ur$orted statement( a fe3

notes and re$resentative e>am$les should suffice.

,irst( the 3ords are often not even Luoted. See e.g.( Com$l. Q9( 92( 95( /9. Second( the

Plaintiff often fails to even allege that a statement 3as made blaming him for the S&ATtings(

instead only claiming that the alleged statements ;im$ly= or ;im$ute= that he 3as involved./

Third( 3here a statement is alleged and Luoted( the Luoted material often doesnt clearly

accuse the Plaintiff of anything. ,or instance( in Com$l. Q#8 the Plaintiff 3rites ;)efendant ,rey

stated that Plaintiff Vcould have gotten me 'illed(= but does not sho3 3ith 3hat 3ords the

Plaintiff 3as named Band in fact( %r. ,rey did not name the Plaintiff. 0i'e3ise( in Q91( the

Plaintiff Luotes the anonymous blogger ;Ace of S$ades= as saying( ;Othey are literally going to

get someone 'illed(= but doesnt sho3 that the Plaintiff is one of those $eo$le included in the

term ;they.= Similarly( in Q#5( the Plaintiff Luotes a statement allegedly from %r. &al'er B%r.

&al'er does not recall ma'ing this statement( that is( on its face( only discussing the S&ATting

of %i'e Stac'N3hich is not the subMect of this suitNand it is ambiguous as to 3hether he is

blaming Kimberlin( !auhauser( or ;TS


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*vans( #5? ,. d /#?( /9? B).C. Cir. 1/94 ;statements that are Vloosely definable or Vvariously

inter$retable cannot in most conte>ts su$$ort an action for defamation.= Thus none of these

statements can constitute defamation.

,urther( in every case( the Plaintiff doesnt ma'e any nonconclusory allegations that the

statements or im$lications are made 3ith 'no3ledge that they are false( or rec'less disregard for

the truth. The Plaintiff doesnt allege that any )efendant 'no3s 3ho the S&ATterBs are( so ho3

3ould any of them 'no3 if any statement is false %oreover( in Com$l. Q1? the Plaintiff 3rites

;Omany of the )efendants... believed that Plaintiff 3as involved 3ith the s3attings= negating

the element malice for an un'no3n subset of the )efendants. The remainder of the time( the

Plaintiff at best alleges negligence( Q 129 B;3ithout conducting any due diligence=( and does so

in only a conclusory fashion. ,inally( the Plaintiff does not once $ro$erly allege that he 3as

$ro>imately harmed by any such im$lications. Thus( the Plaintiff has not $ro$erly alleged that

any )efendant $ut the Plaintiff in a false light as it relates to any $ossible role the Plaintiff had in

the S&ATtings of &al'er( ,rey and Eric'son.

. The Plaintiff ,ails to Pro$erly Plead ,alse 0ight in !elation to the 0oss of %r.&al'ers "ob

,irst( this issue is $recluded by collateral esto$$el as outlined su"ra $$. /1. %r.

Kimberlin had his day in court on the issue of 3hether he caused %r. &al'ers termination( and

he lost.

Second( the Plaintiff has failed to allege 3ith a$$ro$riate $articularity that )efendant

&al'er Bor anyone else had accused the Plaintiff of causing %r. &al'ers termination.

S$ecifically( the Plaintiff failed to s$ecify 3hat statements various $ersons made to suggest that

the Plaintiff caused the termination of %r. &al'ers Mob. E.g. Com$l. Q4/( #8. The Plaintiff also

2


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doesnt s$ecify the time and $lace statements 3ere made and often doesnt s$ecify the identity of

the $erson ma'ing the alleged false statements or im$lications.

Third( the Plaintiff does not $ro$erly allege malice. It might be strange at first glance to

thin' that a $erson could lac' 'no3ledge about his o3n firing( and the Plaintiff Luotes from an

alleged termination email laying out some claims about 3hy %r. &al'er 3as terminated.

Ho3ever( it is 3ell understood in em$loyment la3 that the stated reason for an em$loyment

decision might not be the real reason for that decision. See( e.g. c+onnell +ouglas Cor". v.

-reen( 411 *.S. #/ B1/#2 Ba legitimate( nondiscriminatory reason for an em$loyment decision

3ill not shield an em$loyer from discrimination claims 3here it is $roven to be a $rete>t for

racial animus. This seems even more li'ely to be the case 3hen the ne3s is delivered by outside

counsel. This means that to $rove 3hy %r. &al'er 3as fired( the Plaintiff needs to $lead more

than sim$ly the reason $roffered by a former em$loyers la3yer the Plaintiff must allege facts

demonstrating that it 3as actually the reason and not merely a $rete>t. ,urther( even if he

adeLuately $led that this 3as the actual reason for firing( he has to also $lead that %r. &al'er

'ne3 that this 3as the reason or had a rec'less disregard 3hen determining 3hether it 3as the

reason. ,or instance( in Schnabel v. Abramson( 2 ,. 2d 92 Bnd Cir. ??? the court felt that the

Luestion of the reason 3hy a $laintiff 3as terminated 3as a close enough Luestion for a Mury to

decide( demonstrating that reasonable $eo$le can disagree on the reason for a termination

decision. So the Plaintiff has failed to $ro$erly $lead that %r. &al'er 3as not fired because of

4


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the Plaintiffs conduct(2? or that any $erson e>hibited malice by claiming the Plaintiff 3as the

cause of %r. &al'ers termination.21

,inally( the Plaintiff ma'es no allegation of any damage $ro>imately caused by these

uns$ecified statements. Thus( the Plaintiff has failed to $ro$erly allege any )efendant $laced

him in a false light in relation to the loss of %r. &al'ers Mob.

2. The Plaintiff ,ails to Pro$erly Plead ,alse 0ight in !elation to the Alleged attery

:nce again( the Plaintiff is barred by the $rinci$le of collateral esto$$el from claiming

that %r. &al'er assaulted Bor battered him at all. The matter is settled in %r. &al'ers favor(

and he shouldnt be forced to litigate the matter a third time.

,urther( even if collateral esto$$el didnt a$$ly( the Plaintiff has failed to $ro$erly allege

that any )efendant made defamatory statements regarding this alleged assault. There is not one

single Luoted statement by any )efendant related to the alleged assault( and( once again( the

Plaintiff also doesnt name the time and $lace of such a statement( or the identity of the $erson

ma'ing it.

%oreover( the Plaintiff doesnt $ro$erly allege malice. As noted above( %r. &al'er has

re$eatedly claimed he acted in selfdefense( and %ontgomery Countys courts have no3 t3ice

determined that he 3as telling the truth. The Plaintiff a$$arently thin's it is malicious to agree

3ith this Court.

,inally( the Plaintiff failed to allege that these alleged falsehoods $ro>imately caused the

Plaintiff damage. As a result( the Plaintiff has not $ro$erly alleged that the )efendants $laced

2? Indeed( in an email to a co)efendant the Plaintiff bragged that he had caused %r. &al'ers

termination and threated to visit similar conseLuences on that )efendant. See Attachment A to

0evy Affidavit in his ;:$$osition to %otion for 0eave to Pursue )iscovery to Identify

)efendant Ace of S$ades= filed as EC, no. #51 B$$. 24 in 6imberlin v. '!C et al. 7I8.21 In fact( it is even harder to allege malice in relation to the other defendants since the Plaintiff

does not allege that they are first $arty 3itnesses to %r. &al'ers termination.

5


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him in a false light in relation to this alleged assault or on any other subMect. ,or all of these

reasons( all claims for false light should be dismissed for %r. &al'er and( in the name of Mudicial

economy( for all )efendants.

I*"

THE PLAINTIFF FAIL. TO PROPERLY PLEAD PUBLICITY OF PRI*ATE FACT., BY

FAILING TO ALLEGE THAT THE DEFENDANT. PUBLICI9ED ANYTHING THAT

/A. PRI*ATE OR A FACT

This is one of three ne3 causes of action based on invasion of $rivacy that the Plaintiff

has alleged in the ne3 case. That is( he did not list them as causes of action in 6imberlin v. '!C

7I8( and didnt therefore allege facts to su$$ort this cause of action in that statement of facts. So

it should not be a sur$rise that( having submitted virtually identical statement of facts in this

case( the Plaintiff has failed to allege facts sufficient to sustain these ne3 causes of action( too.

*nder %aryland la3( in order to $lead the tort of $ublicity given to $rivate facts the

Plaintiff must allege the follo3ing elements

:ne 3ho gives $ublicity to a matter concerning the $rivate life of another issubMect to liability to the other for unreasonable invasion of his $rivacy( if the

matter $ublici7ed is of a 'ind 3hich

Ba &ould be highly offensive to a reasonable $erson( and

Bb Is not of legitimate concern to the $ublic.

Hollander v. 4ubo$( ## %d. 4#( 55( 251 A. d 41 B1/#8. Ho3ever( the only claims that the

Plaintiff alleges that the )efendants gave $ublicity to 3as 1 allegations and im$lications that he

3as involved in the S&ATting of %essrs. &al'er( ,rey and Eric'son( allegations that he

caused %r. &al'er to lose his Mob( and 2 allegations that he attem$ted to frame %r. &al'er for

the crime of assault.

This almost seems too obvious to say( but in order to claim that the )efendants have

$ublici7ed $rivate facts( the Plaintiff must first admit they are true

8


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A ;fact= is a $ro$osition 3hich correctly describes a state of affairs in the 3orld.

To say that something is a ;fact= is necessarily to say that it is true. It is for this

reason that one never encounters the $hrase ;false facts(= 3hile the $hrase ;truefacts= is a barbarous redundancy.

+oe v. 2.S.( 92 ,. Su$$. d 922( 941 BS.). Te>. ???+ see also 2ranga v. Federated

%ublications Inc.( 129 Idaho 55?( 8# P. 2d /( 222. B??2 B;Othe cause of action for $ublic

disclosure of embarrassing $rivate facts V$rovides for tort liability involving a Mudgment for

damages for $ublicity given to true statements of fact = Bem$hasis added. As )ean Prosser has

said( this is ;a cause of action in $ublicity( of a highly obMectionable 'ind( given to $rivate

information about the $laintiff( even though it is true and no action 3ould lie for defamation.=

Hollander ( ## %d. at 5# Bem$hasis added. In +oe li'e in the instant case( the $laintiff 3as

claiming invasion of $rivacy by $ublicity of $rivate facts( 3hile simultaneously claiming that

they 3ere not true. The court dismissed the claim( stating that in contrast to defamation and false

light( 3here the harm is caused by falsehoods being uttered about a $erson( the tort of $ublication

of $rivate facts ;is designed to redress re$utational inMuries made all the more $ainful because the

$ublic revelations about dee$ly $rivate and intimate matters are undeniably true.= 92 ,. Su$$. d

at 94.

,urther( even if 3e read the assertion of this cause of action as a s$ontaneous confession

by the Plaintiff that he 3as indeed involved in the S&ATting of )efendants &al'er( Eric'son and

,rey( that he did cause %r. &al'er to lose his Mob( and that he did try to frame %r. &al'er for

batteryNlaying 3aste to the maMority of the rest of his com$laintNnone of these are $rivate

facts. ,or instance( re$orts on the commission and investigation of crimes such as S&ATting

and crimes related to attem$ting to frame a $erson for a crime are not $rivate facts. %aryland

courts have regularly held that information about a $ersons criminal history is not $rivate facts.

%emberton v. !ethlehem Steel Cor".( 88 %d. A$$. 122( 5? A. d 11?1 B1/98. %ean3hile( the

#


36/52

Su$reme Court has $rotected e>$ression related to ;a matter of $aramount $ublic im$ort the

commission( and investigation( of a violent crime 3hich had been re$orted to authorities.=

Florida Star v. !JF ( 4/1 *.S. 54( 5282# B1/9/ Binvalidating a la3 that made it a crime to

reveal the name of a ra$e victim( 3hile 2ranga a$$lied this reasoning to state that there cannot

be ;$rivate facts= in relation to criminal conduct. ,inally( the only $erson 3ho might arguably

have a right to $rivacy regarding the facts of %r. &al'ers termination is %r. &al'er. The

Plaintiff cannot claim it is a fact that he interfered 3ith %r. &al'ers livelihood( but someho3

%r. &al'er discussing this matter is an invasion of the %laintiffs $rivacy.

,or these t3o reasonsNthe Plaintiff has not alleged that any true facts 3ere $ublici7ed

and has not $ro$erly alleged that they 3ere $rivateNthe Plaintiff has failed to allege the tort of

invasion of $rivacy by $ublicity into $rivate facts( Mustifying dismissal of this count.

*"

THE PLAINTIFF FAIL. TO PROPERLY PLEAD IN*A.ION OF PRI*ACY BY

INTRU.ION INTO .ECLU.ION, BY FAILING TO ALLEGE UNLA/FUL INTRU.ION,

OR IN*OL*EMENT IN PRI*ATE MATTER.

The Plaintiff( for the first time in this case( also alleges invasion of $rivacy by intrusion

into seclusion( and also fails to $lead its elements. The Court of A$$eals has described unla3ful

intrusion into seclusion as follo3s

:ne 3ho intentionally intrudes( $hysically or other3ise( u$on the solitude or

seclusion of another( or his $rivate affairs or concerns( is subMect to liability to the

other for unreasonable invasion of his $rivacy( if the intrusion 3ould be highlyoffensive to a reasonable $erson.

Hollander ( 251 A. d at 55. The Plaintiff has neither alleged unla3ful intrusion nor that any

alleged intrusion 3as into the Plaintiffs ;seclusion.=

,irst( the Plaintiff has not alleged unla3ful intrusion. ;*nli'e defamation( the intrusion

on seclusion tort deals 3ith the manner in 3hich )efendant obtained the information rather than

9


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the truth or falsehood of the information itself.= /rundle v. Homeside 4ending Inc.( 18

,.Su$$.d 2/8( 4?1 B). %d.( ??1. The Plaintiff never alleges that any of the )efendants did

anything outside of using the ordinary tools of MournalismNas'ing $ersons Luestions( e>amining

$ublic records or reciting eye3itness accountsNand( therefore( the Plaintiff has failed to allege

intrusion ;in a manner 3hich 3ould be highly offensive to a reasonable $erson.= Id. See also

!eaumont v. !ro$n( 85 %ich. A$$. 455( 482( 2# -& d 5?1 B1/#5 Bholding that ;merely

3riting a letter= 3as not an unla3ful method of intrusion+ Wilson v. Sysco Food Services of

+allas( Inc.( /4? ,. Su$$. 1??2( 1?14 B-.). Te>. 1//8 Bholding that ;inLuiries into Plaintiffs

$rivate affairs( $articularly her se>ual activities= 3as not an unla3ful method of intrusion.

!ather( ;Oan essential element of this tort is a $hysical intrusion analogous to a tres$ass.=

%ierson v. 'e$s -rou" %ublications Inc.( 54/ ,. Su$$. 825( 84? BS.).


38/52

*I"

THE PLAINTIFF FAIL. TO PROPERLY PLEAD APPROPRIATION OF HI. NAME OR

LIKENE.., BECAU.E HE FAIL. TO ALLEGE THE DEFENDANT. HA*E TAKEN

AD*ANTAGE OF HI. GOOD; NAME, FAIL. TO ALLEGE HI. NAME HA.

COMMERCIAL *ALUE, FAIL. TO ALLEGE ANY HARM PRO


39/52

0i'e3ise( 4a$rence instructs that ;a $ersons name or li'eness must have commercial or

other value before an a$$ro$riation is actionable.= // %d. at #?8. The Plaintiff has made no

such allegations( and given the 3ay the Plaintiff has destroyed his o3n re$utation( su$ra $$. 12

1/( it is hard to see ho3 he could $lausibly claim that it had such value.

,urther( 4a$rence instructs that the use must be more than incidental

The fact that the defendant is engaged in the business of $ublication( for e>am$le

of a ne3s$a$er( out of 3hich he ma'es or see's to ma'e a $rofit( is not enough to

ma'e the incidental $ublication a commercial use of the name or li'eness. Thus ane3s$a$er( although it is not a $hilanthro$ic institution( does not become liable

under the rule stated... to every $erson 3hose name or li'eness it $ublishes.

// %d. at #?2. The Plaintiff has not made any $ro$er allegations of nonincidental uses of his

name or li'eness. In his nonconclusory allegations( he has alleged that the )efendants used his

name and li'eness solely in 3ebsites 3here ne3s is disseminated.

,inally( the Plaintiff has made no allegations as to ho3 he has been damaged by the

alleged use of his name and li'eness.

,or all of these reasons( the Plaintiff has failed to $ro$erly allege invasion of $rivacy by

misa$$ro$riation of his name or li'eness( and this count should be dismissed.

*II"

THE PLAINTIFF DOE.N0T PROPERLY ALLEGE ANY ACTUAL INTERFERENCE

/ITH AN Eisting Contract. The elements of that tort are

B1 e>istence of a contract bet3een $laintiff and a third $arty+ B defendants

'no3ledge of that contract+ B2 defendants intentional interference 3ith that

21


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contract+ B4 breach of that contract by the third $arty+ and B5 resulting damages

to the $laintiff.

Fo$ler v. %rinters II Inc.( 9/ %d. A$$. 449( 48# B1//1. esides the fact that the Plaintiff made

only a conclusory allegation that an em$loyment contract e>isted or that any )efendant 'ne3

that such a contract e>isted Bone 3onders 3hy this Court should assume that any )efendant

3ould ,no$ he is not an at3ill em$loyee( he has not made any nonconclusory allegation of

any breach of that contract( and the Plaintiffs o3n language suggests they did not. See e.g.

Com$l. Q18# Balleging that )efendants ;intentionally attem"ted to interfere 3ith= his

em$loyment relationshi$ Bem$hasis added. Therefore( the Plaintiff has not $led intentional

inference 3ith an e>isting contract.

0i'e3ise( the fifth count tal's about $ros$ective economic advantage( but that is the same

cause of action as tortious interference 3ith business relationshi$s.2 The elements of this tort in

%aryland are as follo3s

B1 intentional and 3illful acts+ B calculated to cause damage to the $laintiffs intheir la3ful business+ B2 done 3ith the unla3ful $ur$ose to cause such damage

and loss( 3ithout right or Mustifiable cause on the $art of the defendants B3hich

constitutes malice+ and B4 actual damage and loss resulting.

S"engler v. Sears Roebuc, & Co.( 182 %d. A$$. ?( 9#9 A.d 89( 841 B??5. :nce again(

the Plaintiff doesnt ma'e any nonconclusory allegations of interference. He sim$ly claims in a

conclusory fashion he has suffered damage ;both as an em$loyee of "ustice Trough %usic Osic

and as a musician.= Com$l. Q1#2. In relationshi$ to future business the ;$laintiffO must identify

a $ossible future relationshi$ 3hich is li'ely to occur( absent the interference( 3ith s$ecificity.=

!aron Financial Cor". v. 'atan(on( 4#1 ,.Su$$.d 525( 548 B). %d. ??8. He doesnt even

attem$t to do this. Sim$ly $ut( he ma'es no s$ecific allegations of ho3 this damage manifested

itself( meriting dismissal of this count.

2 See !ag$ell 1?8 %d. A$$. at 5?4 B1//4 Bnoting that t3o torts are the same.

2


41/52

-or does he allege any facts that 3ould lead this Court to believe that it 3as $rongful

acts that $ro>imately caused interference 3ith an e>isting contract or his business relationshi$s.

As the S"engler court noted( not all interference is actionable

Tortious or deliberate intent to harm a $laintiffs business relationshi$ is not alone

sufficient to su$$ort an intentional interference claim. There must also be $roof

that the defendants conduct in interfering 3ith contract or business relations 3asaccom$lished through im$ro$er means. ConseLuently( to recover for tortious

interference 3ith business or contractual relationshi$s( the defendants conduct

must be ;inde$endently 3rongful or unla3ful( Luite a$art from its effect on the

$laintiffs business relationshi$s.=

Id. at 84184. So( for instance( if the reason 3hy he suffered these losses 3as because of

$ublicity of truthful information related to his criminal $ast( that 3ould not su$$ort a claim of

tortious interference 3ith business relationshi$s.

,or instance( the Plaintiff claims that )efendants to have caused ;a maMor institutional

funder of Plaintiffs non$rofit em$loyer= to cease that funding. Com$l. 189. This allegation is

conclusory and refers $urely to losses by his cor$oration and not by the Plaintiff. In fact( the

only $artially s$ecific allegation of a loss of funding is in Com$l. Q18( 3here he claims that the

State )e$artment canceled a grant to "ustice Through %usic 3hen it learned that a convicted

terrorist 3as using that money to ;hostO activists from Iran( Tur'ey( Ka7a'hstan( Egy$t( Demen(

0ibya( Saudi Arabia( Tunisia( ahrain( "ordan and else3here.= Id. The Plaintiff does not

$ro$erly allege that this inMury 3as caused by any 3rongful act(22 and it is less than intuitive that

it 3ould be. The Plaintiff is a convicted serial bomber. :ne can imagine that $ublicity of these

22 The Com$laint doesnt Luote any $art of the t3o articles he blames for costing "ustice Through

%usic the grant( but 3hat little can be gleaned about their content suggests that they 3ere not

false in the slightest 3ay. The title of the first( ;&hy is the State )e$artment Partnering 3ithS$eed3ay omber rett KimberlinO= refers to the Plaintiff by a term that had $reviously been

used by the Si>th Circuit( 6imberlin v. White( # ,. 2d at 59( and the internet address for the

T3itchy $iece Bnot even the title is Luoted a$$ears to suggest it called him a terrorist( 3hich is $erfectly reasonable given that his bombings fit the definition of domestic terrorism under 19

*.S.C. F221B5. Contrary to 3hat the Plaintiff evidently thin's( it is not defamation to call him

either the S$eed3ay omber or a terrorist.

22


42/52

true factsNthat the Plaintiff is a convicted terrorist and that the State )e$artment is using him to

train activists from Iran Ncould cause the State )e$artment to end the $rogram if only because

of its $oor o$tics. This chain of events 3ould not be tortious interference( and it 3ould involve

harm to his em$loyer and not to him. As this e>am$le illustrates( it is im$ortant that this Court

demand s$ecificity( so it can have some assurance that the alleged interference 3as actually

tortious and that any damage 3as actually suffered by the Plaintiff.

&ith the Com$laint having failed to ma'e any nonconclusory allegation of either

tortious interference 3ith an e>isting contract( or 3ith business relationshi$s( such claims should

be dismissed.

*III"

THE PLAINTIFF0. CLAIM FOR BATTERY I. BARRED BY COLLATERAL

E.TOPPEL AND THE .TATUTE OF LIMITATION.

The Plaintiffs claim of battery arises from the incident on "anuary /( ?1. As noted

above( su"ra $$. /1( any claim that %r. &al'er assaulted the Plaintiff on that day is $recluded

by collateral esto$$el( t3ice. The Plaintiff had his day in court on these claims( t3ice. He lost(

t3ice. %r. &al'er should not be forced to litigate the issue a third time.

In addition( his claim is untimely. Courts have has regularly held that %) C:)E CTS. G

"*). P!:C. F51?5( 3hich states that ;Oan action for assault( libel( or slander shall be filed

3ithin one year from the date it accrues= a$$lies eLually to actions for battery. See e.g. Coby v.

obley( 1//4 *.S. )ist. 0E@IS 515( 5 B). %d. 1//4 B;%s. Coby had not alleged the

intentional torts of assault and battery( both of 3hich 3ould be barred by %arylands one year

statute of limitations...= and adison v. Harford Cnty -o. %"


43/52

%aryland la3( the terms ;assault= and ;battery= are dee$ly blended and often confused. ,or

instance 4amb v. State( /2 %d. A$$. 4( 49 B1//1( describes in great detail ho3 the terms are

treated the same

y 3ay of informal Bor sometimes even formal shorthand( both the case la3 and

the statutory la3 freLuently use the sim$le noun ;assault= to connote a

consummated battery alone and at other times to connote the combination of theinchoate attem$t to beat or to batter follo3ed immediately by the consummation

of that attem$t. Thus used( ;assault= is a synonym for ;battery= and is also a

synonym for the combined form ;assault and battery.=

Thus( often assault is shorthand for a number of acts that include 3hat is in other states referred

to as battery. See e.g. %). C:)E C!I%. 0A& F2?1Bb Bdefining ;assault= as ;assault( battery(

and assault and battery=+ Snyder v. State( 1? %d. A$$. 2#?( 29?291 B?12 B;Ocommon la3

assault( then( is a chameleon conce$t that no one should attem$t to describe too $recisely=+

+i0on v. State( 122 %d. A$$. 25( #55 A.d 58?( 5#? B??? B;Oassault generally reLuires either

an actual battery( an attem$ted battery( or an attem$t to frighten... as its basic element=.

:n the face of the Com$laint the Plaintiff alleges that the incident involving the alleged

battery occurred on "anuary /( ?1( Com$l. QQ484# Bfirst occurrence(24 and( therefore( this

litigation falls 3ell outside this statute of limitations. Thus( even if the claim 3as not $recluded

by collateral esto$$el( any claim for battery should be dismissed because the statute of limitation

had run out.

24 -umbering of $aragra$hs in the Com$laint is not entirely seLuential. There are t3o sets of

$aragra$hs numbered 449+ the first set a$$ears on $ages 115( and the second a$$ears on

$ages 5255. This is most li'ely an artifact of third claim being cut and $asted from another

document.

25


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Itreme and outrageous(

that it $ro>imately caused the Plaintiffs alleged emotional distress( and that such emotional

distress is severe( $ro>imately causing damage to the Plaintiff. !atson v. Shiflett ( 25 %d. 894(

#22 B1//. ,urther( %aryland la3 reLuires that the Plaintiff must also demonstrate that his

emotional distress has a $hysical manifestation. As the %aryland Court of A$$eals affirmed(

;Oa $laintiff must $rove( ho3ever( a Vclearly a$$arent and substantial $hysical inMury in one of

four 3ays B1 an e>ternal condition+ or B sym$toms of a resulting $athological+ B2

$hysiological+ or B4 mental state.= *00on obil Cor". v. Albright ( 422 %d. 2?2( #1 A.2d 2?( 82

28


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B?12. The reLuirement of such a sho3ing of $hysical manifestation is a guard against

falsehoods( allo3ing some obMective measure of the $ersons emotional state. The instant

Plaintiff has not made any nonconclusory allegation that he has felt any emotional distress and

has made no allegations at all of a $hysical manifestation of such distress. As a result( his claim

to have suffered Intentional Infliction of Emotional )istress fails.

Additionally( he has failed to allege e>treme and outrageous conduct. The Plaintiff only

alleges t3o actions that could have $ro>imatelyNlegallyNcaused the Plaintiff harm and 3as

carried out by any of the )efendants defamationfalse light in the form of alleged im$lications

of S&ATting and other re$rehensible conduct( and the alleged assault. The claim that the

Plaintiff received threats of death and inMury cannot be considered because he has not alleged that

any of the )efendants are the legal cause of such threats. 25 0i'e3ise( allegations that )efendants

have called for him to be sent bac' to $rison againN3hich are only su$$orted by conclusory

allegationsN3ould not amount to anything more than $etitioning the government for a redress

of grievances 3hich is $rotected by the ,irst Amendment. As noted earlier( any claim that %r.

&al'er assaulted the Plaintiff is barred by collateral esto$$el.

Even then( the alleged defamation and alleged assault does not meet the standards for

;e>treme and outrageous conduct.= As the court e>$lained in Harris v. Jones 91 %d. 58?( 5#1

B1/##

It is only 3here it is e>treme that the liability arises. Com$lete emotional

tranLuility is seldom attainable in this 3orld( and some degree of transient and

trivial emotional distress is a $art of the $rice of living among $eo$le. The la3intervenes only 3here the distress inflicted is so severe that no reasonable man

could be e>$ected to endure it.

25 !randenburg v. )hio 2/5 *.S. 444( 2/5 B1/8/( establishes the Constitutional standard for

liability for incitement. The Plaintiff has not even alleged the first elementNthe advocacy of the

use of force or la3lessnessNor $ro$erly alleged facts that 3ould su$$ort any other theory that

3ould ma'e the )efendants res$onsible for the actions of third $arties.

2#


46/52

&hat 3e have is very ordinary allegations of defamation and assault. And as noted in Harris(

The $ersonality of the individual to 3hom the misconduct is directed is also afactor. There is a difference bet3een violent and vile $rofanity addressed to a

lady( and the same language to a utte miner and a *nited States O%arine.

Id. at 589 Binternal Luotation mar's omitted. Here the alleged conduct is directed at a hardened

criminal( ;The S$eed3ay omber(= 3hose o3n conduct has caused a man to 'ill himself. The

idea that he is a delicate flo3er 3ho cannot stand to see

walker memorandum in support of mtd (redacted)

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