William John Joseph Hoge,

Plaintiff,
v.
Brett Kimberlin, et al.,
Defendants.

IN THE

CIRCUIT COURT FOR CARROLL COUNTY

MARYLAND
Case No. 06-C-16-070789

PLAINTIFFS OPPOSITION TO DEFENDANT SCHMALFELDTS MOTION TO DISMISS

FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
(DOCKET ITEM 1/3)
COMES NOW William John Joseph Hoge and opposes Defendant Schmalfeldts
Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
(Docket Item 1/3). In opposition Mr. Hoge states as follows:
THE SPECIFIC CLAIMS AGAINST MR. SCHMALFELDT DO NOT RELY ON THE
EXISTENCE OF ANY CONSPIRACY
During the 27 September, 2016, motions hearing, the Court found that
conspiracy was not sufficiently well pleaded to establish jurisdiction over William
Ferguson. Schmalfeldts latest motion to dismiss seeks to have the Court dismiss
all allegations of conspiracy against him as well. Docket Item 1/3 at 6. Even if the
Court did so, Counts IV and XII deal with specific torts which Mr. Hoge alleges
were committed by Schmalfeldt, and the Court has already ruled that it has
personal jurisdiction over him. All the elements of each tort are alleged in both
counts. While Mr. Hoge alleges that Schmalfeldt engaged in tortious acts in
furtherance of a civil conspiracy, neither count requires Schmalfeldt to have been a
member of a conspiracy in order to establish his liability for his acts.

COUNT IV PROPERLY ALLEGES THE ELEMENTS OF DEFAMATION

As the Court noted in its Memorandum Opinion (Docket Item 53, June 9,
2016, at 4) denying Schmalfeldts first Motion to Dismiss, Count IV alleges that
Schmalfeldt knowingly made a false statement directed to the public that accused
Mr. Hoge of having committed the crimes of stalking and subornation of perjury.
Further, Mr. Hoge alleges that the facts show that Schmalfeldt acted with
constitutional malice. Because Schmalfeldt has falsely accused Mr. Hoge of
committing a crime, damages are presumed. General Motors Corp. v. Piskor, 277
Md. 165, 174 (1976).
Schmalfedt seems to believe that Mr. Hoge must show all the evidence
proving his claim in order to survive a motion to dismiss. Docket Item 1/3 at 6, 7.
The Court knows better, and it can see on the face of the Complaint that Count IV
states a claim upon which relief can be granted. Therefore, the Court should deny
the instant Motion to Dismiss just as it did Schmalfeldts three previous Motions to
Dismiss.
COUNT XII PROPERLY ALLEGES THE BREACH OF A VALID CONTRACT
While Schmalfeldt admits that he published Mr. Hoges copyrighted material
without prior written permission in violation of the Settlement Agreement (Docket
Item 1/3 at 5), he apparently wants the Court to believe that the Settlement
Agreement is invalid, alleging there is no consideration because [a]greeing to drop
a lawsuit that the judge told Plaintiff in his motion of summary judgment that he

was probably going to lose cannot be considered something of value.1 Id. at 7. As

the Court knows, even a peppercorn has sufficient value to constitute consideration.
Furthermore, even there were no consideration, Mr. Hoge has a claim because he
relied to his detriment on Schmalfeldts offer to refrain from unauthorized use of
Mr. Hoges copyrighted works.
Mr. Hoge made an offer to dismiss his copyright lawsuit in exchange for
Schmalfeldts dismissal of his counter claims, removal of infringing material from
the Internet, and refraining from publishing any of Mr. Hoges works without prior
written permission. Schmalfeldt accepted the offer and signed the Settlement
Agreement. Schmalfeldt admits that he violated the agreement, and he has not
offered a legally valid excuse.
Thus, Count XII states a claim upon which relief can be granted, and the
Court should deny the instant Motion to Dismiss just as it did Schmalfeldts three
previous Motions to Dismiss.

Schmalfeld misrepresents the record of Hoge v. Schmalfeldt, Case No. 14CV-01683-ELH (D.Md. 2014). He states that Judge Hollander told Mr. Hoge that
his motion for summary judgment would fail. However, inspection of the docket as
posted on PACER shows that the only motion for summary judgment in the case
was filed by Schmalfeldt (Defendants Motion for Summary Judgment, ECF No. 40,
July 18, 2014). In fact, Mr. Hoge opposed Schmalfeldts motion (Plaintiffs
Opposition to Defendants Motion for Summary Judgment, ECF No. 45, Aug. 1,
2014), stating that there were material facts in dispute. Mr. Hoge could not have
moved for summary judgment while claiming that there were disputed material
facts.
3

CONCLUSION
WHEREFORE, Mr. Hoge asks the Court to DENY Defendant Schmalfeldts
Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
(Docket Item 1/3) and to GRANT such other relief as the Court may find just and
proper.
Date: 17 October, 2016

Respectfully submitted,

William John Joseph Hoge, pro se

20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com

CERTIFICATE OF SERVICE
I certify that on the 17th day of October, 2016, I served copies of the foregoing
on the following persons:
William M. Schmalfeldt by First Class U. S. Mail to 3209 S. Lake Drive, Apt. 108,
St. Francis, Wisconsin 53235
Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817
Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817

William John Joseph Hoge

AFFIDAVIT
I, William John Joseph Hoge, 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.
Date: 17 October, 2016
William John Joseph Hoge