The Virginia Court Ruling Dismissing Aaron Walker's Case Against Brett Kimberlin

1

V I R G I N I A

IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

- - - - - - - - - - - x :AARON J. WALKER, : :

Plaintiff, : : -vs- : Case No. CL12-631-00 :BRETT KIMBERLIN, : :

Defendant. : :- - - - - - - - - - - x

Circuit Courtroom 4Prince William County Courthouse

Manassas, Virginia

Tuesday, December 4, 2012

The above-entitled matter came on to be heard

before the HONORABLE RICHARD B. POTTER, Judge, in and for

the Circuit Court of Prince William County, in the

Courthouse, Manassas, Virginia, beginning at 11:15 o'clock

a.m.

APPEARANCES:

On Behalf of the Plaintiff:

DAN BACKER, ESQUIRE

On Behalf of the Defendant:

(Pro Se)

R U D I G E R , G R E E N & K E R N S R E P O R T I N G S E R V I C ECERTIFIED VERBATIM REPORTERS

4116 LEONARD DRIVE

FAIRFAX, VIRGINIA 22030(703) 591-3136

2

1 P R O C E E D I N G S

2 (The Court Reporter was previously sworn by

3 the Clerk of the Court.)

4 THE COURT: Aaron J. Walker, Plaintiff, versus

5 Brett Kimberlin and Ron Brynaert and Neal Rauhauser,

6 Defendants, in 12-631.

7 Whose is present on behalf of the Plaintiff,

8 Mr. Walker?

9 MR. BACKER: Dan Backer, Your Honor, on behalf

10 of Mr. Walker who is present as well.

11 THE COURT: All right. And is Mr. Kimberlin

12 here?

13 MR. KIMBERLIN: Yes, Your Honor.

14 THE COURT: And Mr. Kimberlin is present, Mr.

15 Bryneart is not and Mr. Rauhauser are not present.

16 All right, this comes on -- as you know we’ve

17 consolidated at least three motions that are on the docket

18 to heard today and put them all on one date for a date

19 certain from the motions day and I appreciate your

20 patience because I know we had to continue it to today’s

21 date.

22 So we will proceed. I think the threshold

23 motion is clearly the motion to dismiss. You need to


4116 LEONARD DRIVE


3

1 proceed on that one first and then we will take up the

2 other motions.

3 The three motions being the Plaintiff’s motion

4 or the Defendant’s motion to dismiss, which we will take

5 up first, and in addition to that we have Plaintiff’s

6 motion for sanctions and Plaintiff’s motions for

7 protective order and stay.

8 All right, so we will start with Mr.

9 Kimberlin; you want to heard, sir?

10 MR. KIMBERLIN: Yes, Your Honor.

11 THE COURT: Mr. Backer?

12 MR. BACKER: Yes, we filed a default motion

13 against the Defendants Brynaert and Rauhauser as well and

14 tried to consolidate to today’s date. I just wanted that

15 to be brought to your attention.

16 THE COURT: I saw one at the last minute but I

17 thought it was set for -- it was stuck in my Term Day

18 docket but it may well be on this docket today.

19 When did you file that, do you know?

20 MR. BACKER: We filed a couple of weeks before

21 -- last Friday would have been the earliest possible date

22 and then we asked that it be consolidated with today as

23 well. So I’m guessing seventeen, eighteen days ago.


4116 LEONARD DRIVE


4

1 THE COURT: All right. Well, as long as

2 you’ve filed it with the Clerk we can go ahead and proceed

3 with it.

4 MR. BACKER: Thank you.

5 THE COURT: All right, let’s take the motions

6 -- first the motion to dismiss. Mr. Kimberlin, do you

7 want to heard?

8 MR. KIMBERLIN: Yes, I do.

9 First of all, a couple of days ago I filed a

10 motion to take judicial notice of a decision from the

11 Federal Court in Greenbelt, Maryland. I just want to make

12 sure that you saw that before we get started.

13 THE COURT: I did.

14 MR. KIMBERLIN: Okay. So I would ask that the

15 Court take that into consideration in this case. The

16 issues are fairly similar.

17 There is one count in that complaint that is

18 almost identical to a count in this case. It’s the

19 tortuous interference with contract.

20 Mr. Walker alleged in that case that he was

21 fired from his job because of my contacting his job or

22 something to that effect, which I never did.

23 The Judge, the Federal Judge, in that case


4116 LEONARD DRIVE


5

1 rejected all of Mr. Walker’s claims and dismissed the

2 federal complaint against both me and the organizations in

3 which I’m involved.

4 So I believe that that decision collaterally

5 stops Mr. Walker in this case from arguing the same

6 points.

7 As to my motion to dismiss, numerous claims as

8 to the complaint in this case, there are dozens of counts,

9 eleven criminal counts that he’s alleging under different

10 jurisdictions, some from Virginia, some from Maryland,

11 some from New York, some from D.C., some from Federal.

12 And all these, except for one, have no private

13 right of civil action. The only one that does have a

14 private right of civil action is the business reputation,

15 499 issue, from the state of Virginia.

16 In that case it requires a conviction, 499,

17 prior to the filing of civil action under 18.2-500. So I

18 don’t think that counts four, five, six, seven, twenty-

19 three, twenty-seven, twenty-eight, twenty-nine, thirty,

20 and thirty-one and thirty-two are allowable in this case

21 because they are criminal statutes and some of them are

22 foreign jurisdictions.

23 As to any -- again going to the foreign


4116 LEONARD DRIVE


6

1 jurisdictions, count four is from a federal criminal

2 statute. Count five is from a Maryland criminal statute.

3 Count six is from a federal criminal statute. Count seven

4 is from a Maryland criminal statute. Count nine a

5 Maryland civil statute. Count eleven a Maryland civil

6 statute. Count thirteen a Maryland civil statute. Count

7 fifteen a Maryland civil statute. Sixteen, D.C. civil

8 statute. Eighteen Maryland civil statute. Nineteen D.C.

9 civil statute. Twenty-one a D.C. civil statute. Twenty-

10 two New York civil statute. Twenty-three again is the

11 business conspiracy statute under Virginia criminal law.

12 Twenty-five is under Maryland law, again civil. Twenty-

13 six New York law civil. Twenty-seven federal stalking

14 under federal law. Twenty-eight federal stalking under

15 federal law. Twenty-nine federal stalking under criminal

16 law of New York. And count thirty and thirty-one under

17 New York criminal law. And count thirty-two under

18 Virginia criminal law.

19 Again, I believe that this case is a civil

20 case and it’s a Virginia case. It’s not a Maryland case,

21 it’s not a New York case, it’s not a D.C. case, it’s not a

22 federal case.

23 And for the Plaintiff to allege that this


4116 LEONARD DRIVE


7

1 Court has jurisdiction to apply those statutes is

2 erroneous.

3 Secondly, as far as jurisdiction goes, I never

4 set foot in this county during the time that these

5 allegations occurred, therefore I ask the Court to find

6 that it does not have a jurisdiction over this case.

7 The only thing that the Plaintiff is alleging

8 is that he read an e-mail or a post from the internet on

9 his computer here in Virginia and I think that that

10 doesn’t give this Court jurisdiction to hear the case.

11 So as far as foreign jurisdictions, there is

12 twenty-one counts that rely on foreign statutes. Four,

13 five, six, seven, nine, eleven, thirteen, fifteen,

14 sixteen, eighteen, nineteen, twenty, twenty-one, twenty-

15 two, twenty-three, twenty-five, twenty-six, twenty-seven,

16 twenty-eight, twenty-nine, thirty, thirty-one, thirty-two,

17 and I believe that all of these are improper in this Court

18 and should be dismissed.

19 As far as counts two, four, and five they

20 allege extortion and defamation and the extortion and

21 defamation occurred according to the complaint as part of

22 a settlement matter in a Maryland civil case in which I

23 was involved.


4116 LEONARD DRIVE


8

1 And the Fourth Circuit has been very clear

2 that it’s held that as a matter of public policy

3 settlement negotiations are necessarily inadmissible and

4 other cases to encourage frank discussions and that comes

5 from the Fiberglass Insulators, Inc. versus Dupuy 856 F.

6 2nd 652 and 654.

7 In this case counts two, four, and five allege

8 that I defamed Mr. Walker by sending his attorney, Beth

9 Kingsley, and e-mail as part of settlement. And it’s

10 interesting that Mr. Walker actually sent an e-mail back

11 with a counter settlement after I sent that e-mail.

12 So for him to allege now that it’s extortion

13 and defamation is just not appropriate and certainly is

14 not actionable in this case.

15 As far as the entire case, basically it boils

16 down to the fact that Mr. Walker doesn’t like what I said

17 or what Neal said or what Ron said. Ron is a reporter and

18 for me to be sued for talking to a reporter or allegedly

19 talking to a reporter is a very slippery slope as far as

20 the First Amendment is concerned.

21 I have a right to talk about Mr. Walker. I

22 knew his identity. I knew that Mr. Walker used a fake

23 name, Aaron Worthing, in a civil case in Maryland. And I


4116 LEONARD DRIVE


9

1 asked him to identify himself and he refused, so I asked

2 him the Court to issue an order and to get his identity.

3 I discovered his identity from a third party

4 and I informed the Court in that case in a motion that Mr.

5 Walker was actually -- I mean, Mr. Worthing was actually

6 Mr. Walker.

7 That’s basically the extent of it. I have

8 never done anything else except to write to his attorney

9 and so once that happened, once I identified Mr. Walker,

10 Mr. Walker then went to his employer and told his employer

11 that he’s been identified and he informed his employer

12 that he had been the publisher of a blog called Everyone

13 Draw Mohammed which without belaboring the point, it was

14 an anti-Muslim blog or an anti-prophet Mohammed blog.

15 And of course he has a first amendment right

16 to publish that blog, but he informed his employer that

17 he’s been identified. His employer was obviously

18 concerned that this could cause problems for the firm and

19 for his co-workers, so they terminated him.

20 But they didn’t just terminate him at whim.

21 They went into his office and --

22 MR. BACKER: Excuse me, Your Honor. May I

23 object at all during his statement?


4116 LEONARD DRIVE


10

1 THE COURT: What’s the grounds of the

2 objection?

3 MR. BACKER: Mr. Kimberlin is attempting to

4 testify and insert facts into this conversation when this

5 is about a questionable blog, whether or not the

6 allegations in the complaint justify a -- or can be

7 sustained in the face of a motion to dismiss which

8 presumes the facts are as alleged.

9 Mr. Kimberlin is attempting to testify here

10 and insert facts into evidence instead of arguing the law.

11 THE COURT: You need to stick to motion to

12 dismiss Mr. Kimberlin.

13 MR. KIMBERLIN: Your Honor, the point is there

14 was no defamation. I never contacted his attorney -- I

15 mean, his employer. So I couldn’t defame him to his

16 employer.

17 And I have a First Amendment right both under

18 access to the Court in that civil case in Maryland to

19 inform the Judge about the identity of Mr. Walker. Mr.

20 Walker had filed papers in that court using a fake name,

21 Aaron Worthing.

22 I had a right to identify him in that court

23 under the First Amendment and I also had a right to speak


4116 LEONARD DRIVE


11

1 out about his identity under the First Amendment. He has

2 no right to gag me from talking about him if I know who he

3 is. And that’s what he has asked this Court to do in this

4 particular law suit.

5 He’s asked this Court to issue an injunction

6 prohibiting me from ever telling anyone in count thirty-

7 two -- from ever telling anyone that he is Aaron Walker --

8 Aaron Worthing, the publisher of the hate Mohammed blog

9 because he doesn’t want people to know.

10 MR. BACKER: Again, Your Honor, I’m going to

11 object --

12 MR. KIMBERLIN: I have a right to speak --

13 THE COURT: These are the facts that are set

14 forth in the pleadings, Counsel, so I will overrule the

15 objection at this point.

16 MR. KIMBERLIN: And I have --

17 THE COURT: Go ahead, Mr. Kimberlin, go ahead

18 and finish.

19 MR. KIMBERLIN: a right. I have a right to

20 speak about that. I have a right to speak about that. He

21 had no right to gag me at that time and he has now sued me

22 saying that I tried to get him killed basically or harm

23 him or get him fired. And I never talked to his employer


4116 LEONARD DRIVE


12

1 at all.

2 He’s the one that contacted his employer. He

3 filed this lawsuit in this case using his own name,

4 admitting that he was Aaron Worthing and Aaron Walker, but

5 he sued me for going into a court and exercising my First

6 Amendment right to access to the Court and informing the

7 Judge about the identity of a lawyer who had filed papers

8 using a fake name.

9 And I had a right to do that under the First

10 Amendment. It’s not actionable. He can sue me but it’s

11 protected First Amendment activity and this is free

12 speech.

13 And again going back to the federal decision,

14 he’s filed that case basically accusing me of abusing

15 process and getting him fired and interfering with his

16 First Amendment rights. Well, the Judge in that case

17 decided against him and decided against him without even a

18 hearing, just looking at the pleadings. Deciding against

19 him the day after the motion to dismiss was filed.

20 And I think that shows the kind of thing that

21 we’re dealing with here. We’ve got a case that’s been

22 filed against me for almost a year and thousands of tweets

23 about me and thousands of blog posts about me and then Mr.


4116 LEONARD DRIVE


13

1 Walker raising tons of money to litigate this case because

2 it’s so big and it’s First Amendment and all this stuff.

3 But it really boils down to the fact that he

4 was identified as the publisher of a Muslim hate blog and

5 he didn’t like that. He wanted to do that with anonymity

6 forever and insult Muslims and get Americans killed

7 overseas and you know I had a right to expose that. I had

8 a right to discuss that.

9 And he’s turned this into a political battle.

10 It’s partisan politics at its worst. And you know I

11 believe that this case fails to rise to the level of a

12 decent legitimate this Court should consider and I ask

13 that the Court dismiss it.

14 THE COURT: Thank you, sir. Counsel want to

15 heard in response the motion to dismiss.

16 MR. BACKER: Yes, sir, Your Honor.

17 First with respect to the Maryland decision,

18 the Maryland litigation was a federal case involving

19 different parties and different claims specifically

20 focused on the constitutional law implications of Mr.

21 Kimberlin’s use of state mechanisms to further his

22 conduct.

23 These are completely different claims and we


4116 LEONARD DRIVE


14

1 don’t believe that any of these claims -- the claims here

2 are barred by a ruling there.

3 Moreover, a facial reading of the order by the

4 Judge simply states that the case was dismissed several

5 weeks after Mr. Kimberlin filed his motion to dismiss and

6 after I responded. It happened to coincide with another,

7 a separate motion.

8 But based solely on the grounds that the

9 remedy sought specifically was improperly pled.

10 Specifically, we should have asked for compensatory

11 damages and didn’t. And that is on the face of the order.

12 It does not in any way address any of the

13 substantive points from that claim. And as I’m sure Your

14 Honor knows and I just repeat for the record, Rule 1.6

15 regarding res judicata, res judicata claimed preclusion

16 specifically states that a claim must rise from identified

17 conduct, a transactional occurrence. It must be decided

18 on the merits. In this case it was not.

19 Moreover, it bars a second or subsequent

20 similar action in a Virginia court. But this case

21 precluded the Maryland litigation which was commenced in

22 response to activities in Maryland unrelated to the claims

23 here.


4116 LEONARD DRIVE


15

1 There is only one possibly corresponding claim

2 that between these two matters and that is our count

3 fifteen of the Virginia claim, interference with business

4 relations under Maryland law and tortuous interference of

5 contract in the federal case. So there is the only cross

6 over there.

7 So we believe that we fall well within the

8 scope of the -- or rather outside of the scope of Rule 1.6

9 res judicata, claim for preclusion, because the test isn’t

10 met.

11 Moving on, most of the counts that Mr.

12 Kimberlin argues that most of the counts in our complaint

13 are based on statutes outside Virginia and therefore can’t

14 possibly be actionable.

15 I would start by saying that in the Choice of

16 Law analysis, Virginia courts have consistently adhered to

17 the lex loci delicti standard which says with the last act

18 completing the tort occurred governs where the tort may be

19 tried.

20 That’s from General Insurance of America, Inc.

21 v. Overby-Seawall Company in the Eastern District of

22 Virginia.

23 Because the last act of each of the torts that


4116 LEONARD DRIVE


16

1 we’re alleging occurred here in Virginia, either

2 personally or through communications to individuals here

3 in Virginia or with respect to internet matters through

4 servers and computers located in Virginia, we believe the

5 lex loci delicti standard clearly holds and allows us to

6 bring these foreign matters under Virginia jurisprudence.

7 Next Mr. Kimberlin discusses that the criminal

8 statutes are inapt and that we -- but Virginia Section

9 18.2-500 of the Virginia Criminal Code specifically grants

10 a private cause of action civil court to any person

11 injured in his profession by a business conspiracy.

12 And so within the scope of North American

13 Mortgage Investors v. Pomponio -- I’m sorry, that’s an

14 unrelated -- that one I will bring up a little bit later.

15 But the Virginia Code does allow us to bring

16 tort actions for criminal violations including criminal

17 violations from outside the jurisdiction.

18 Next, Mr. Kimberlin argues that -- essentially

19 Mr. Kimberlin is raising a demurrer as we argued in our

20 response. And then he’s saying that this Court, lack of

21 venue and lack of personal jurisdiction and so forth. But

22 these arguments are irrelevant and superfluous because he

23 waived his right to bring most of these arguments when he


4116 LEONARD DRIVE


17

1 answered the complaint in the first place.

2 And frankly as to personal jurisdiction, you

3 know, Mr. Kimberlin has been coming to this Court and

4 arguing before this Court and filing motions before this

5 Court in this matter well before he filed what is an

6 improperly pled demurrer in this motion to dismiss.

7 So venue and personal jurisdiction as we

8 argued in our response are apt.

9 Quite a lot to cover here. Next I’d like to

10 mention that Mr. Kimberlin talked about his communications

11 with Beth Kingsley, the former attorney of Mr. Walker in

12 this other Maryland matter awhile back, is inadmissible.

13 However, Mr. Kimberlin has himself taken privilege to use

14 the exact same discovery -- settlement negotiations --

15 with other counsel and injected them into this case by

16 concluding those discussions in his motions filed here.

17 Specifically, our conversations with Mr.

18 Jeffrey Cohen who’s an attorney representing the two

19 organizations that Mr. Kimberlin is an employee of, our

20 negotiations with him ended up in this filing. So it’s a

21 little hypocritical to argue that only the negotiations of

22 the settlement negotiations that benefit him may be

23 admitted.


4116 LEONARD DRIVE


18

1 Mr. Kimberlin also argues that this was a

2 partisan political matter and you know Your Honor to be

3 frank, these two gentlemen have different political

4 ideologies is irrelevant to the torts here. I’m not aware

5 that the words Republican, Democrat, Conservative, or

6 Liberal really appear anywhere in our complaint. But if

7 they do, they’re merely descriptive.

8 This is not a political matter. It’s a

9 question as to the tort claims and the tort -- the

10 tortuous conduct of Mr. Kimberlin towards Mr. Walker.

11 And as we detailed in Exhibit A in our

12 response, we feel that each and every one of these claims

13 is justified with respect to Mr. Kimberlin and certainly

14 with respect to the other defendants who Mr. Kimberlin

15 continues to argue on their behalf that counts against

16 them somehow should be dismissed as well.

17 Your Honor, we believe this case is apt. We

18 believe the arguments that the counts raise are

19 meritorious and that this motion should be denied.

20 THE COURT: Mr. Kimberlin, in response.

21 MR. KIMBERLIN: Thank you.

22 First of all, I didn’t waive anything

23 intentionally. I did mention in the answers to the


4116 LEONARD DRIVE


19

1 complaint of jurisdiction that that would be one of my

2 defenses. So I don’t think that’s been waived.

3 As far as the other defendants, I’ve been

4 charged with a conspiracy count or multiple conspiracy

5 counts and basically I’m accused of somehow talking to a

6 reporter and this is some conspiracy.

7 I mean when a person talks to a reporter and

8 he gets sued for conspiracy, you know, it’s pretty strange

9 in the United States and of course I’m going to argue that

10 there’s no conspiracy because there is none.

11 And if that happens to get the charges

12 dismissed against Mr. Rauhouser and Mr. Brynaert, well, so

13 be it. But to say that there’s a conspiracy that they

14 presented not one shred of evidence of a conspiracy.

15 I mean all I did was file a motion in court

16 and sent an e-mail to his attorney. That’s the basis of

17 this entire case.

18 He doesn’t say I did anything else. Now I

19 have a right to file a motion in court. If the Judge

20 doesn’t like it, or if they don’t like it, they can

21 complain to the Judge.

22 You know, they don’t come and sue me in

23 another court and say that I’ve done all of these things


4116 LEONARD DRIVE


20

1 which I didn’t do. I filed a single pleading, a one-page

2 pleading and all this has come out because I identified

3 him as Aaron Walker and that he filed pleadings using a

4 fake name in that court.

5 If somebody came into this court, you know,

6 and filed a pleading in this court using a fake name, I

7 would want them identified, too. I think you would too,

8 Judge.

9 So you know that’s basically what this case

10 boils down to. I identified this man as Aaron Walker and

11 I’ve suffered all of this abuse ever since.

12 I’ve never blogged once about this man. I’ve

13 never said one thing out of the courthouse about this man

14 or have a legal situation about this man.

15 He’s tweeted about me thousands and thousands

16 and thousands of times. I’ve gotten death threats to my

17 family and I’ve had people stalking me at my house with

18 craziness. And I’ve had to get peace orders against the

19 people who are doing this because this man has created

20 this narrative, this false narrative, that Brett Kimberlin

21 got him fired from his job and we know that’s not true.

22 We know that’s not true because his employer

23 wrote him back in January telling him exactly why he was


4116 LEONARD DRIVE


21

1 fired for being incompetent, for blogging on company time,

2 and for poking at a major religion to hope that extremists

3 would come out and hurt him or hurt the people at the

4 firm.

5 And that’s it. That’s why he was fired. But

6 he’s suffered this abuse on me because he wants to be the

7 victim and he wants this Court to buy into that and say,

8 yes could sue Mr. Kimberlin. You can take him to court

9 and put him on the stand and get all this discovery in.

10 Put him under oath and get him fired from his job. That’s

11 what they want.

12 And I’m asking you to look at this case for

13 what it is. It’s a hit job on me. It’s base on nothing

14 that’s actionable.

15 Thank you.

16 THE COURT: Thank you, sir. We’ll take about

17 a ten minute recess and then I’ll come back.

18 (Recess.)

19 THE COURT: We’re back on the record.

20 The Plaintiff has brought a complaint against

21 the Defendant Kimberlin, and two other Defendants who are

22 not before the Court today personally.

23 Their complaint contains thirty-two counts of


4116 LEONARD DRIVE


22

1 which fourteen involve the Defendant Kimberlin. Counts

2 two, four, five, eight, nine, fourteen, fifteen, sixteen,

3 twenty-three, twenty-four, twenty-five, twenty-six,

4 twenty-seven, and thirty-two.

5 The Defendant Kimberlin has filed a motion to

6 dismiss the complaint for failure to state a claim, the

7 lack of jurisdiction, improper venue, and violation of the

8 First Amendment.

9 Kimberlin’s motion to dismiss will be granted.

10 That is motions for any additional sanctions will be

11 denied.

12 In light of the Court’s ruling on the motion

13 to dismiss, the other pending motions by the Court are

14 moot and therefore dismissed as well.

15 Plaintiff’s motion for default judgment

16 against the co-defendants are also denied and the case is

17 dismissed.

18 Upon consideration of the totality of the

19 pleadings including the attached exhibits and the argument

20 of the parties and counsel it is clear to this Court that

21 the Plaintiff seeks two million dollars in punitive

22 damages, but makes no claim for compensatory damages so

23 that the Plaintiff (inaudible) is not recognizable under


4116 LEONARD DRIVE


23

1 the law.

2 It’s also clear from the various pleadings and

3 exhibits filed in this case that the parties have been

4 involved in extensive disputes that have involved

5 political and religious issues.

6 These various claims including criminal and

7 civil allegations and litigations in state and federal

8 courts all of which appear to have been dismissed. The

9 most recent case filed by the Plaintiff against the

10 Defendant Kimberlin and his two organizations was

11 dismissed by order of the U.S. District Court in the

12 District of Maryland on November 28, 2012, just six days

13 ago, in which the Judge stated and I quote, “I deem it

14 unwise to intervene in the bitter political disputes

15 between the parties.”

16 This Court takes the same position. It’s

17 clear that this case is simply a continuation of meritless

18 and vindictive litigation between the parties.

19 While the law in Virginia is clear that

20 failing to state a claim is an issue generally addressed

21 by demurrer, and Defendant Kimberlin has not filed a

22 demurrer in this case.

23 It’s also true that Virginia law provides that


4116 LEONARD DRIVE


24

1 the signature of an attorney or a party with any pleading

2 before this Court constitutes a certification by him that

3 the pleading is well grounded in fact, warranted by

4 existing law, and is not interposed for any improper

5 purpose such as to harass or to cause unnecessary delay or

6 needless increase in the cost of litigation.

7 The Court finds that the complaint is not well

8 grounded in fact, it’s not warranted by existing law, and

9 it’s imposed for an improper purpose as part of an ongoing

10 political dispute between the parties.

11 While the statute provides for sanctions by

12 the Court, this Court will grant the motion to dismiss by

13 Defendant Kimberlin.

14 The Court denies the motion for any further

15 sanctions.

16 The Court further finds that count two is

17 based upon a claim of defamation. Under Virginia law, the

18 elements on defamation are:

19 1) Publication,

20 2) Of an actual statement and,

21 3) Intent.

22 In order to assert a claim of defamation

23 however the Plaintiff must first show that the Defendant


4116 LEONARD DRIVE


25

1 published a false factual statement that concerns and

2 harms the Plaintiff.

3 But here by the Plaintiff’s own allegations

4 including paragraph fifty-one they indicate that the

5 statements allegedly made by the Defendant were not

6 directed at the Plaintiff.

7 In addition, as the Defendant has stated in

8 his motion to dismiss and here today expressions of

9 opinion are constitutionally protected and they’re not

10 actual as defamation.

11 So as a matter of law the Court finds that the

12 statements set forth in the complaint do not contain

13 provable false factual statements but are relative in

14 nature and depend upon the viewpoint of the speaker.

15 Counts four and five are dismissed for lack of

16 proper jurisdiction and venue.

17 As to count eight, it is based on allegation

18 of intentional infliction of emotional distress. In order

19 to recover on a claim of intentional infliction of

20 emotional distress the Plaintiff must satisfy four

21 elements of proof:

22 1) That the Defendant’s conduct was

23 intentional and reckless and,


4116 LEONARD DRIVE


26

1 2) The Defendant’s conduct was outrageous and

2 intolerable and,

3 3) There was a causal connection between the

4 wrongdoers conduct and the resulting emotional distress,

5 4) The resulting emotional distress was

6 severe.

7 Even taken in the light most favorable to the

8 Plaintiff, the Court cannot find that the alleged

9 statements of the Defendant Kimberlin were outrageous or

10 could be the basis of any severe emotional distress.

11 As to count fourteen, that count is based on

12 the tort of interference with business expectations and

13 the elements of that tort include:

14 1) A business relationship or expectancy of a

15 probability of future economic benefit to Plaintiff as an

16 objective test and,

17 2) Defendant’s knowledge of that relationship

18 or expectancy and,

19 3) Reasonable certainty that absent the

20 Defendant’s intentional misconduct Plaintiff would have

21 continued in that relationship and,

22 4) The interference was by improper methods

23 and,


4116 LEONARD DRIVE


27

1 5) Damages resulted from that improper

2 interference.

3 The complaint fails to state all of the

4 elements. It fails to state sufficient facts that were in

5 any way improper methods by the Defendant.

6 Counts fifteen and sixteen are dismissed for

7 lack of jurisdiction and venue.

8 Count twenty-three is based on the Virginia

9 business conspiracy. And the elements of that are:

10 1) An allegation of two or more persons,

11 2) An agreement and,

12 3) To willfully and maliciously interfere

13 with another in his trade, reputation, business, or

14 profession by any means and,

15 4) Malice, that is an intentional purpose and

16 without justification.

17 The given complaint fails to state sufficient

18 facts to support the elements of the tort and fails to

19 state those specific facts with reckless and

20 particularity.

21 Count twenty-four is based on the tort of

22 Virginia Common Law of Conspiracy and the elements of the

23 tort include:


4116 LEONARD DRIVE


28

1 1) Two or more persons combined to,

2 2) Accomplish by some concerted action for

3 some criminal or unlawful purpose, or an unlawful purpose

4 by unlawful and criminal means.

5 If a Plaintiff fails to allege the tort with

6 reckless and particularity.

7 Counts twenty-five, twenty-six, and twenty-

8 seven are dismissed for lack of jurisdiction and venue and

9 for the reasons set forth herein.

10 Count thirty-two is based upon Plaintiff’s

11 request for an injunction, but an injunction requires one,

12 irreparable harm and two, a lack of adequate remedy of

13 law.

14 In view of the fact no compensatory damages

15 are sought, there can be no showing of irreparable harm in

16 the allegations set forth in the complaint or any showing

17 that the Plaintiff would not have an adequate remedy of

18 law or a claim of merit.

19 Therefore, the Defendant’s motion to dismiss

20 counts two, four, five, eight, nine, fourteen, fifteen,

21 sixteen, twenty-three, twenty-four, twenty-five, twenty-

22 six, and twenty-seven, and thirty-two is granted.

23 The motion is granted and those counts are all


4116 LEONARD DRIVE


29

1 dismissed with prejudice. The Court shall note the

2 exceptions of the Plaintiff and the Defendant to the

3 ruling of the Court.

4 The other motions are therefore rendered moot

5 and are also dismissed. At the same time the Court will

6 dismiss the motion for default judgment against the co-

7 defendants upon the same grounds as set forth by the

8 Court.

9 I will ask counsel to prepare an order which

10 simply reflects the ruling of the Court which is that the

11 Defendant’s motion to dismiss is granted and the case is

12 dismissed.

13 Thank you, gentlemen.

14 * * * * *

15 (Whereupon, at approximately 11:57 o'clock

16 a.m., the hearing in the above-entitled matter was

17 concluded.)

18

19

20

21

22

23


4116 LEONARD DRIVE


30

* * * * *

CERTIFICATE OF REPORTER

I, SUZANNE GONZALES, a Verbatim Reporter, do

hereby certify that I took the stenographic notes of the

foregoing proceedings which I thereafter reduced to

typewriting; that the foregoing is a true record of said

proceedings; that I am neither counsel for, related to,

nor employed by any of the parties to the action in which

these proceedings were held; and, further, that I am not a

relative or employee of any attorney or counsel employed

by the parties hereto, nor financially or otherwise

interested in the outcome of the action.

____________________________SUZANNE GONZALESVerbatim Reporter


4116 LEONARD DRIVE


The Virginia Court Ruling Dismissing Aaron Walker's Case Against Brett Kimberlin

Documents

Transcript of The Virginia Court Ruling Dismissing Aaron Walker's Case Against Brett Kimberlin