MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

PLAINTIFFS REPLY TO DEFENDANT TETYANA KIMBERLINS RESPONSE TO

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AGAINST HER
NOW COMES the Plaintiff, Aaron J. Walker, Esq., and files this Plaintiffs Reply to
Defendant Tetyana Kimberlins Response to Plaintiffs Motion for Summary Judgment Against
Her. He states the following:
1.

In Mr. Walkers Motion for Summary Judgment (hereinafter the MSJ) (Dkt.

No. 216), he pointed out that Mrs. Kimberlins answers to interrogatories precluded Mrs.
Kimberlin from offering any evidence in her favor. Mr. Walker went on to present evidence in
his favor, showing that the undisputed evidence demonstrated that Mrs. Kimberlin told repeated
falsehoods and made repeated misrepresentations in her Application for Statement of Charges
(hereinafter the Application) in order to induce the Commissioner to wrongfully charge Mr.
Walker with a crime.

Mr. Walker argued that if all of her lies, misrepresentations, and

irrelevancies were removed from the Application, what was left could not support probable
cause. He went on to show that there is no genuine dispute of material fact in regard to
compensatory and punitive damages or the desirability of an injunction.

2.

In response, Mrs. Kimberlin1 has filed two oppositions, neither of which shows

that Mr. Walker should not be granted summary judgment. First, she never conforms to the
requirements of Md. R. 2-501(b).

Second, she does not dispute that she is barred from

introducing evidence. Third, she attempts in vain to claim that the Application is itself evidence,
despite its status as inadmissible hearsay on the truth of the matters asserted therein. Fourth, she
speciously claims that she was provided legal advice by a judge. Fifth, she wrongly claims that
summary judgment can never be granted with respect to damages. Sixth, she claims that she is
entitled to an evidentiary hearing when she is not. Seventh, she incorrectly thinks she deserves a
second chance to ask this Court to reconsider the denial of her first motion for summary
judgment against Mr. Walker. Finally, she engages in straw man arguments. None of these
arguments are sufficient to ward off summary judgment. Therefore, this Court should grant
summary judgment against Mrs. Kimberlin, find that she did commit malicious prosecution
against Mr. Walker, and award appropriate relief.
I.
MRS. KIMBERLINS RESPONSES DO NOT CONFORM TO THE REQUIREMENTS
OF MARYLAND RULE 2-501(B)
3.

As noted above, there are in reality two responses Mrs. Kimberlin has filed that is

germane to Mr. Walkers latest motion for summary judgment against her: her original
Defendants Reply to Plaintiffs Motion for Summary Judgment and Request for a Hearing
(hereinafter the First Opp. to MSJ) (Dkt. No. 195), which technically responded to the motion
for summary judgment that was later stricken for length, and her Defendants Response to
Plaintiffs Motion for Summary Judgment Re Brett Kimberlin and Tetyana Kimberlin and

Although both oppositions are presented as joint oppositions, Mrs. Kimberlin is the only person
who can validly argue in her favor, and, therefore, as a matter of style this Reply treats every
argument as hers alone.
2

Request for Hearing (hereinafter the Second Opp. to MSJ) (Dkt. No. 226), which
incorporated the First Opp. to MSJ by reference. However, neither document complies with the
requirements of Md. R. 2-501(b) which states in relevant part that
(b) Response. A response to a motion for summary judgment shall be in writing
and shall (1) identify with particularity each material fact as to which it is
contended that there is a genuine dispute and (2) as to each such fact, identify and
attach the relevant portion of the specific document, discovery response, transcript
of testimony (by page and line), or other statement under oath that demonstrates
the dispute. A response asserting the existence of a material fact or controverting
any fact contained in the record shall be supported by an affidavit or other written
statement under oath.
There is no effort either to identify with particularity any facts in dispute in either of Mrs.
Kimberlins responses or to identify and attach evidence that demonstrates such a dispute. For
this reason alone, this Court can grant Mr. Walkers motion for summary judgment in its
entirety.
II.
MRS. KIMBERLIN DOES NOT AND CANNOT OFFER ANY EVIDENCE TO DISPUTE
ANY OF MR. WALKERS EVIDENCE
4.

In the three pages in the Second Opp. to MSJ, or in the seven pages of First Opp.

to MSJ,2 she does not dispute Mr. Walkers central argumentthat in three answers to Mr.
Walkers interrogatories she has conceded that she has no evidence in her favor. Specifically,
Mr. Walker noted that he presented the following interrogatories to Mrs. Kimberlin:
2.
Identify each person, other than a person intended to be called as
an expert witness at trial, having discoverable information that tends to support a
position that you have taken or intend to take in this action, and state the subject
matter of the information possessed by that person.
3.
Identify each person whom you expect to call as an expert witness
at trial, state the subject matter on which the expert is expected to testify, state the
substance of the findings and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion, and, with respect to an expert
2

This document was incorporated by reference in Second Opp. to MSJ 1.

3

whose findings and opinions were acquired in anticipation of litigation or for trial,
summarize the qualifications of the expert, state the terms of the experts
compensation, and attach to your answers any available list of publications
written by the expert and any written report made by the expert concerning the
experts findings and opinions.
4.
If you intend to rely upon any documents, electronically stored
information, or tangible things to support a position that you have taken or intend
to take in the action, provide a brief description, by category and location, of all
such documents, electronically stored information, and tangible things, and
identify all persons having possession, custody, or control of them.
In response to all three interrogatories, Mrs. Kimberlin answered, None.

In those three

answers she has conceded that there is no ordinary witness she can call in her favor (including
herself), no expert witnesses to call in her favor, and no documents, electronically stored
information, or tangible things she can produce that would support any position she wished to
take in this case.
5.

So the only question that remains is whether Mr. Walker has presented enough

evidence in his own favor to show that there was no probable cause. Mrs. Kimberlin never
attempts to dispute the first two elements of malicious prosecutionthat there was a proceeding
instituted against Mr. Walker and that it was terminated in his favor. As for probable cause, Mrs.
Kimberlin has presented no valid argument to show that Mr. Walker has failed to demonstrate
that the undisputed facts establish a lack of probable cause.
6.
this Court.

Indeed, she doesnt even seem to understand what the proper question is before
Over and over in the First Opp. to MSJ, Mrs. Kimberlin argues that the

Commissioner had sufficient reason to believe that there was probable cause.3 However, Mr.
Walker has not alleged that the Commissioner was wrong in determining that there was probable
3

See, e.g., First Opp. to MSJ 9 (the Commissioner was allowed to consider [these facts] in
his finding of probable cause), 10 (The Commissioner could also consider...), 14 (The
Commissioner was told in the statement of charges...), and 16 (In short, the Commissioner had
overwhelming evidence for finding probable cause).
4

cause based on what Tetyana Kimberlin presented. Mr. Walker has alleged that Mrs. Kimberlin
repeatedly lied to the Commissioner and misled the Commissioner in order to dupe the
Commissioner into filing false charges. Having failed to understand what is even in dispute, it
should not be surprising that the Defendant has failed to show a genuine dispute of material fact.
A.

Tetyana Kimberlins Application for Statement of Charges Cannot Be Considered

as Evidence Supporting Probable Cause.
7.

In paragraph nine of the First Opp. to MSJ, Mrs. Kimberlin argues that

Defendant, the mother of the minor, made the statement of charges under oath, which amounts
to direct testimony of the facts. This is false. Her Application for Statement of Charges is only
admissible to show what she told the Commissioner. It is not admissible to prove the truth of
the matter asserted, Md. R. 5-801(c), because that would be hearsay. Therefore, to consider her
Application as evidence of probable cause now, when it would be inadmissible for that purpose
at trial, would defeat the point of rule allowing for summary judgment, which is to avoid
unnecessary trials.4
8.

Even if it were testimony, it would be inadmissible prior testimony. Her prior

testimony can only be admitted under Rule 5-804(b)(1) if Mrs. Kimberlin is unavailable as a
witness and if Mr. Walker had a prior opportunity to cross-examine her. Neither condition is
met.

Mr. Walker obviously did not have an opportunity to cross-examine her before the

Commissioner. Further, while Mrs. Kimberlins decision to invoke her privilege against selfincrimination (Dkt. No. 202) has made her unavailable, such unavailability is due to the

See, e.g., Fed. R. Civ. P. 56, Notes of Advisory Committee on Rules1963 Amendment (The
very mission of the summary judgment procedure is to pierce the pleadings and to assess the
proof in order to see whether there is a genuine need for trial).
5

procurement of Mrs. Kimberlin under Rule 5-804(a)5 and, therefore, she cannot utilize the
hearsay exception provided in Rule 5-804(b)(1).
9.

Mrs. Kimberlin also claims that hearsay can form part of the determination of

probable cause, by citing Carter v. Aramark, 153 Md.App. 210, 835 A.2d 262 (2003). In that
case, an off-duty police officer made a report of suspected criminal conduct which initiated the
prosecution. The Carter court quoted Brewer v. Mele, 267 Md. 437, 450 n. 12 (1972) for the
proposition that [t]he acceptability of hearsay, even ... compounded, in the accumulation of
probable cause is fundamental. The Carter court expanded on this point in footnote four (835
A.2d at 274) by quoting DeFelice v. Ingrassia, 210 F.Supp.2d 88, 92 (D. CT. 2002), affd, No.
02-7758, 66 Fed. Appx. 240 (2nd Cir. 2003) as saying
On a summary judgment motion, the district court properly considers only
evidence that would be admissible at trial.... Nonetheless, when the dispute
concerns whether officers had probable cause to obtain a search or arrest warrant,
the district court properly considers hearsay evidence that was used to obtain the
warrant in question.
(internal quotation marks and citations omitted). In that context, the Maryland Court of Special
Appeals was not declaring that the hearsay rule could be wholly abandoned in a malicious
prosecution case. Rather, a law enforcement officer could rely on hearsay to form probable
cause and if any malicious prosecution case follows, that officer can offer the same hearsay
evidence in her own defense.
10.

This Carter rule presents four difficulties for Mrs. Kimberlin if she attempts to

apply it to her case.

11.

First, Mrs. Kimberlin is not a law enforcement officer.

See, e.g., U.S. v. Bollin, 264 F.3d 391, 413 (4th Cir. 2001) (interpreting the parallel Fed. R.
Evid. 804 as preventing persons who invoke their Fifth Amendment Privilege from introducing
prior testimony on their own behalf because they have procured their own unavailability).
6

12.

Second, nowhere in her Application does she claim she is relying on hearsay. For

instance, on page two of her Application, she writes that Mr. Walker [has] exhibited a
disturbing level of interest in Kelsie since she was 14 with a multi-year course of harassing and
stalking behavior. She does not write I have been told by John Doe that Mr. Walker [has]
exhibited a disturbing level of interest in Kelsie since she was 14 with a multi-year course of
harassing and stalking behavior. Since her Application never relies in any relevant sense on
hearsay, she cannot claim now there is probable cause based on hearsay.
13.

Third, she does not actually cite anyones hearsay in her favor in the First or

Second Opp. to MSJ. One would look through either document in vain for any instance where
she cites such hearsaythat is, statements by persons other than her offered to support her
claims.
14.

Fourth, given that she has declared by her answers to interrogatories that there is

no evidence in her favor, it would be improper to consider any evidence in her favor. For all of
these reasons, the Carter rule doesnt help her.
15.

Finally, it is worth noting that Mrs. Kimberlins Application simply doesnt say

what she claims it does. Repeatedly throughout the First Opp. to MSJ, she claims that her
Application says things it simply doesnt say. For instance, in paragraph 10 of the First Opp. to
MSJ, Mrs. Kimberlin claims that she did not mean that Mr. Walker was stalking her family in the
legal sense. Instead, she now claims that she meant it in the sense that she found on some
random website.
16.

There are two problems with that assertion. First, the undisputed facts show that

Mr. Walkers conduct did not meet that definition of stalking either. This definition requires that
Mr. Walker repeatedly, unwantedly and disruptively break[] into the life-world of the victim.

None of the undisputed facts show that Mr. Walker did anything that meets that definition. He
writes on the Internet to a general audience, and if Kelsie Kimberlin wishes to ignore him, she
has that option. Thus by either definition of the word stalking, it is a false accusation.6
17.

Second, if Mrs. Kimberlin claims that when she used the word stalking that she

meant stalking by that definition, she did not inform the Commissioner, and in doing so, she
misled the Commissioner. Specifically, she had with[held] information that a reasonable person
would realize might affect the decision to prosecute and gave incomplete information to those
who prosecute. MPJL-Cv 17:2. A reasonable person would know that the Commissioner
would assume unless told otherwise that if a person accuses another person of stalking, that
person was using the definition provided in MD CODE Crim. L. 3-802, and a reasonable person
would not have withheld the fact that he or she was not referring stalking as defined in that
statute.
18.

For all of the reasons outlined above, Mrs. Kimberlin has failed to show that her

Application can be considered evidence that probable cause was present.

B.

Mrs. Kimberlin Has Failed to Validly Invoke the Affirmative Defense of Advice of
Counsel.
19.

A second defense raised to Mr. Walkers assertion that the undisputed facts

establish a lack of probable cause is the advice of counsel defense, where Mrs. Kimberlin claims
not that she relied on an attorney in practice, but on the supposed advice of a judge. There are
four problems with that claim.
20.

First, it is an affirmative defense that Mrs. Kimberlin did not raise in either

Answer filed in this case (Dkt. Nos. 132 and 163). Having failed to raise this in her Answers,

Because this is a verified pleading, this denial can be considered as evidence placed before this
Court.
8

she has waived the defense. Indeed, it would be unfair and prejudicial surprise to allow her to
invoke this defense at this late stage.
21.

Second, Mrs. Kimberlin does not claim that she relied on the advice of counsel.

She claims she relied on the supposed advice of a judge. However, a judge cannot provide legal
adviceoutside of extremely narrow exceptions. See, Md. R. 18-103.10 and Md Code Cts. &
Jud. Proc. 1-203.
22.

Third, she has failed to establish any advice was given or that Judge Creighton

was even talking about Mr. Walker.

In all her out-of-context quotations of former Judge

Creighton from a hearing in which Mr. Walker was not a party, there is no instance where she
says you should file charges against Mr. Walker. There isnt even any instance where she
says, there is probable cause to believe that Mr. Walker committed a crime. Indeed, none of
the quotations mention Mr. Walker, and there is no reason to think that former Judge Creighton
would opine about Mr. Walkers activities, given that he was not a party or even a witness7 in the
hearing. In any case, Mr. Walker again invites this Court to review the hearing audio for itself to
determine definitively what happened at that hearing.

That evidence will show that Mrs.

Kimberlins claims about that hearing are flat-out false.

23.

Finally, Mrs. Kimberlin has failed to prove that she gave a full and fair

presentation of the evidence. It is true that [p]roof that [s]he placed the facts fully and fairly
before [her] counsel and acted upon [counsels] advice is a good defense to the charge of want of
probable cause. Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 506 (1972). However, as
indicated in Fowler, it is Mrs. Kimberlins burden to show that full and fair presentation of the
7

In the First Opp. to MSJ 13, Mrs. Kimberlin falsely states that Judge Creighton heard the
testimony under oath of Plaintiff. If this Court reviews the audio of the hearing, it will
recognize that this is a falsehood. Mr. Walker was not called to the stand, and none of Mr.
Walkers prior testimony was introducedin audio form, or otherwise.
9

facts. If this Court reviewed the audio of the relevant hearing for itself, it would see that no such
full and fair presentation was given.8
24.

Therefore, for all of these reasons, Mrs. Kimberlin cannot seek refuge in the

affirmative defense of advice of counsel.

III.
SUMMARY JUDGMENT CAN BE GRANTED AS TO DAMAGES
25.

Mrs. Kimberlin gets weirdly personal in her argument against Mr. Walker in

paragraph six of the Second Opp. to MSJ as follows:

Plaintiff also ask this Court to grant summary judgment on damages, insisting that
this Court impose hundreds of thousands in compensatory damages and millions
in punitive damages. Yes, Plaintiff did go to Yale, but did [sic] not remember in
Civil Procedure 101 that damages are not appropriate relief on summary
judgment.
The quality of ones education doesnt matter on a legal question. The correctness of his or her
legal claims is the only thing that matters. On this point Mrs. Kimberlin offers no citation for her
assertion, and the case law shows she is incorrect: this Court can award damages on a summary
judgment basis. That is precisely what happened, for instance, in Consolidated Rail Corp. v.
State, 87 Md.App. 287 (1990). In that case, the State of Maryland filed suit against one of its
contractors for failing to properly complete certain roadwork. The State first won a summary
judgment on the issue of liability, and [f]ollowing discovery and a further hearing, the court
granted the States motion for summary judgment in the full amount of the damages previously
determined. Id. at 290. That judgment awarded both the costs of repair and the costs associated
with detouring traffic during the repair. The Court of Special Appeals, in turn, didnt find
8

To give a couple practical examples, Kelsie Kimberlin was allowed to accuse Mr. Walker of
attempting to follow her on Twitter without introducing Mr. Walkers prior testimony that he hit
the follow button by accident. Further, none of the writings by Mr. Walker were introduced into
evidence. That is not a full catalogue of the shortcomings of their presentation, but it is
sufficient to show that Judge Creighton did not receive a full and fair presentation of the facts.
10

anything inherently objectionable in awarding damages on summary judgment. While the Court
of Special Appeals disagreed with the grant of summary judgment with respect to the costs of
detour (based on a failure of evidence), the same court affirmed the award of the costs of repair
on summary judgment. Therefore, this Court can award damages on a motion for summary
judgment.
26.

It is true to say that it is rare for damages to be susceptible to determination on a

summary judgment basis. However, it is also rare for a defendant to admit via answers to
interrogatories that she has no evidence to support any position she is taking or intends to take.
Given that there is no procedural bar preventing the award of damages, there is no need for a trial
on the topic of damages.

Rather, with no facts in dispute, this Court can determine the

appropriate level of damages for itself.

IV.
MRS. KIMBERLIN IS NOT ENTITLED TO AN EVIDENTIARY HEARING OR A
THIRD ATTEMPT TO OBTAIN SUMMARY JUDGMENT AGAINST MR. WALKER
27.

Mrs. Kimberlin also seems to think that she is entitled to a full evidentiary

hearing. For instance, paragraph three of the Second Opp. to MSJ states that Defendants will
call former Judge Audrey Creighton as a witness at the hearing. Likewise, her oppositions
claim that she will show there is a genuine dispute of material fact at such a hearing. See, e.g.,
Second Opp. to MSJ 7 (claiming that the hearing will allow the Defendants to show that there
is no malice and that there was probable cause.)

However, Md. R. 2-501(b) makes it

exceedingly clear that the time to present her evidence of a dispute of material fact is not at the
hearing, but in her response to Mr. Walkers motion:
(b) Response. A response to a motion for summary judgment shall be in writing
and shall (1) identify with particularity each material fact as to which it is
contended that there is a genuine dispute and (2) as to each such fact, identify and
attach the relevant portion of the specific document, discovery response, transcript
11

of testimony (by page and line), or other statement under oath that demonstrates
the dispute. A response asserting the existence of a material fact or controverting
any fact contained in the record shall be supported by an affidavit or other written
statement under oath.
The response should have already included her allegedly disputed facts and the evidence in
support thereof. A summary judgment hearing isnt the time to produce such alleged evidence; it
should already have been produced. Further, any evidence she wishes to present at such a
hearing is improper. As noted above, her answers to interrogatories foreclose any presentation of
evidence on her behalf.
28.

Further, Mrs. Kimberlin believes that she can win her own motion for summary

judgment at this hearing. For instance, the First Opp. to MSJ 3 states that:
A hearing at this time will allow [the Defendants] to show that there was in fact
probable cause, and once a hearing is held on this issue, the Court will be required
to grant summary judgment in their favor.
A similar sentiment is expressed in the Second Opp. to MSJ 7. However, Mrs. Kimberlin has
already attempted to show that the undisputed facts demonstrate that there was probable cause
supporting her charges (Dkt. No. 114), and she has already had a hearing on the issue (Dkt. No.
128). She has not only failed to make such a showing, her motion for reconsideration (Dkt. No.
135) has also failed (Dkt. No. 161). What part of no does Mrs. Kimberlin fail to understand?
It is inappropriate to give her a third chance to seek summary judgment, especially given that she
has since admitted that she has no evidence in her favor and, therefore, there is even less
evidence she can present in her favor than before: None. It is now time to see if this Court
believes that the undisputed evidence shows that probable cause was absent, which is what Mr.
Mr. Walkers motion asserts.

12

V.
MRS. KIMBERLIN OFFERS NO OTHER REASON WHY SUMMARY JUDGMENT
SHOULD NOT BE GRANTED
29.

Finally, Mrs. Kimberlin attacks two straw men while attempting to argue her case.

First, in paragraph four of the First Opp. to MSJ, Mrs. Kimberlin argues that acquittal is not
proof of a lack of probable cause. Mr. Walker has never argued otherwise. The only relevance
of the dismissal of charges against Mr. Walker is that it means that he prevailed in the case,
satisfying an element of the cause of action.
30.

Second, Mrs. Kimberlin argues that the Court [in Carter v. Aramark] made clear

that probable cause does not, as Plaintiff argues, require enough evidence to convict[.] First
Opp. to MSJ 5. Mr. Walker has argued no such thing. Rather, Mr. Walker has argued since
the beginning of this case that probable cause is defined as [r]easonable cause; having more
evidence for than against. Reisterstown Lumber Co. v. Royer, 91 Md.App. 746, 758 (Md. App.,
1991).

Or as the Carter Court said probable cause is a reasonable ground of suspicion

supported by circumstances sufficiently strong in themselves to warrant a cautious man in

believing that the accused is guilty. 835 A.2d 272-273. As noted in Mr. Walkers MSJ 13, at
most, this Court can conclude that Kelsie Kimberlin was going through a rough patch at the time
the Application was filed, without any evidence showing that Mr. Walker was criminally
responsible for any of her difficulties. No reasonably cautious person would blame Mr. Walker,
out of all the people on Earth, for Kelsie Kimberlins difficulties under those circumstances
when there is no evidence pointing in his direction.
CONCLUSION
31.

In the end, Mrs. Kimberlin has run out of defenses. She doesnt conform to the

requirements of Md. R. 2-501(b), promising to someday present evidence to place any facts in

13

dispute when the time to do so has passed. Indeed, by her answers to interrogatories, she has
admitted that she has no evidence in her favor. Meanwhile, her claim that her Application is
itself evidence of the truth of the matter asserted crashes on the shoals of the rule against hearsay.
32.

Failing that, she attempts to utilize the affirmative defense of advice of counsel,

despite having waived it and despite the fact she has established none of the elements of the
defense. She also claims, contrary to case law, that this Court cannot award damages on
summary judgment. She repeatedly declares that she wants a full evidentiary hearing she is not
entitled to and a third chance to argue her motion for summary judgment against Mr. Walker
when she already lost on that issue and has lost her bid for reconsideration. Finally, Mrs.
Kimberlin kills a pair of straw men while failing to recognize that the undisputed facts show that
there was no probable cause. For all of these reasons, summary judgment is appropriate, and
given Mrs. Kimberlins total failure to cogently answer Mr. Walkers arguments, there is no need
for a hearing. The papers alone make it clear that Mr. Walker is entitled to summary judgment.
33.

Put simply, all the evidence is on Mr. Walkers side. Therefore, there is no need

for this case to go any further regarding Mrs. Kimberlin, and summary judgment should be
granted in Mr. Walkers favor.

WHEREFORE, based on the foregoing, this Court should grant Mr. Walkers Motion for
Summary Judgment against Mrs. Kimberlin, with or without a hearing, and provide any other
relief that is just and equitable.

14

Tuesday, August 16, 2016

Respectfully submitted,

Aaron J. Walker, Esq.

Va Bar# 48882
P.O. Box 3075
Manassas, Virginia 20108
AaronJW72@gmail.com
(703) 216-0455
(no fax)

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

Dated:

CERTIFICATE OF SERVICE
I certify that on the
day of
, 2016, I served copies of this
document on Brett and Tetyana Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817.
In accordance with the Courts order of March 10, 2016 (Dkt. No. 111), I have performed such
service by certified mail and will file the green card when it is returned to me.

15