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IN THE CIRCUIT COURT FOR CARROLL COUNTY MARYLAND

WILLIAM JOHN JOSEPH HOGE, III


Plaintiff
v.
BRETT KIMBERLIN, et al.,
Defendants

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Case No. 06-C-16-070789

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DEFENDANT SCHMALFELDTS RESPONSE TO PLAINTIFFS OPPOSITION TO


DEFENDANTS MOTION FOR SUMMARY JUDGEMENT FOR FAILURE TO STATE
A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND TO DECLARE
PLAINTIFF WILLIAM JOHN JOSEPH HOGE III A VEXATIOUS LITIGANT
(DOCKET ITEM 79)
COMES NOW Defendant William M. Schmalfeldt, Sr. to reply to Plaintiff William John
Joseph Hoge IIIs opposition to this defendants Motion for Summary Judgment for Failure to
State a Claim Upon Which Relief Can Be Granted, and to Declare Plaintiff William John Joseph
Hoge III a Vexatious Litigant (Docket Item 79). In reply, Mr. Schmalfeldt states as follows:
PLAINTIFF IS MISINFORMED IN HIS BELIEF THAT FAILURE TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED CAN BE GROUNDS FOR
DISMISSAL OF A COMPLAINT IN A CIVIL CASE IN REGARDS TO COUNT IV OF
HIS COMPLAINT
A motion for summary judgment for failure to state a claim upon which relief can be
granted is designed to test the legal sufficiency of the claim as determined from the pleadings
alone. All factual allegations are accepted as true along with any inferences or conclusions which
may fairly be drawn therefrom. The motion should be granted only where the claim is so clearly
unenforceable as a matter of law that no factual development can possibly justify a right to
recovery. See Attard v Adamczyk, 141 Mich.App. 246, 248-249; 367 N.W.2d 75 (1985). [Ambro

v American National Bank & Trust Co of Michigan, 152 Mich.App. 613, 616-617; 394 N.W.2d
46 (1986).]
DEFENDANT SCHMALFELDTS COMMENT ON A BLOG WAS NOT
DEFAMATORY TO PLAINTIFF AS A MATTER OF LAW
Defendants comment on a blog cannot be construed as defamatory because the truth or
falsity of the allegation had not, and still has not been determined by a Court of law. Hoge was
accused of the crimes of stalking and subordination of perjury. Those charges have not been
adjudicated. The States Attorney deemed the charges nolle prosequi, which is not an acquittal.
Therefore, since the truth or falsity of the comment Schmalfeldt made in a blog cannot be
defamation. The statement was a matter of the defendants opinion. It could only be defamatory
if it were demonstrably untrue. Since the county chose not to determine whether or not Hoge is a
stalker or one who suborns perjury, Schmalfeldt is protected by his first amendment right to
believe whichever way he wishes to believe in this regard. Had Hoge been sent to trial and
acquitted of the charges, then he might have a case. But in this instance, it is black letter law that
without adjudication one way or the other, Schmalfeldts comment is an expression of opinion
and protected by the First Amendment. There is no disputed fact here. A statement of opinion is
not defamatory just because Hoge got his feelings hurt.
DEFENDANT HAS NO IDEA WHAT PLAINTIFF MEANS BY INDEPENDENT AND
UNDISCLOSED FACTS NOT INCLUDED IN THE ARTICLE
Hoge claims that Schmalfeldt relied on independent and undisclosed facts that were not
contained in the article. So undisclosed are these facts, Schmalfeldt is not aware of them and
Hoge has made no specific mention of what hes going on about, except to say he hopes to
develop that during discovery. Discovery is not meant to be a fishing expedition and Defendant

has the right to know the full nature of all allegations against him in order to reply to them.
Nothing in the Rules of Civil Procedure says that summary judgment is inappropriate prior to
discovery. The Court has the duty of ascertaining whether or not there are genuinely disputed
facts. The key word is genuinely. If Mr. Hoge claims Schmalfeldt is The Bogey Man and
that he hopes to find evidence during discovery, that is not a genuinely disputed fact.
PLAINTIFF MAKES NO CLAIM AS TO HOW DEFENDANT KNEW OR SHOULD
HAVE KNOWN THE CONTENT OF THE BREITBART UNMASKED ARTICLE
WERE UNTRUE
Hoge claims Schmalfeldt knew, or should have known, that the comment he made about
Hoge in the Breitbart Unmasked article was untrue. On what evidence would Schmalfeldt have
made that judgment? Based on Hoges past interactions with Schmalfeldt and the Courts,
Schmalfeldt has asserted that Hoge is a skilled and frequent liar. He lied in Court to a judge
about how blocking a person on Twitter was the same thing as having to change telephone
numbers to avoid telemarketers. He lied to Schmalfeldt's face when he said he had no intention
of following through on an appeal of the district Courts denial of a peace order application.
Schmalfeldt relied on that statement and as a result Hoge went to the Carroll County Circuit
Court to appeal the District Courts denial of same, and thus won an uncontested piece order.
At a show cause contempt of Court hearing in January 2015, Hoge presented a piece of
evidence that Defendant Schmalfeldt knows for a fact was forged. Whether or not Hoge knew
the item was forged is subject to debate. Defendant maintains he wrote no such letter as the one
introduced into evidence at the show cause contempt of Court hearing, in which Schmalfeldt
prevailed.
Given Hoges history of prevarication and deceit in his dealings with this Defendant, why
in the world would Schmalfeldt be expected to know that the comment he made in the Breitbart

Unmasked article was untrue when every experience he is had with Hoge has been the result of a
lie of one form or another? Since Hoge cannot read Schmalfeldt mind anymore than
Schmalfeldt can read Hoges mind, this presents the Court with a genuinely undisputed fact that
Schmalfeldt could not have known or had reason to know that the comment in the Breitbart
unmatched article was false.

For the reasons stated above, namely that there are no undisputed facts before this Court,
Schmalfeldt asks that this Court grant his motion for summary judgment based on Plaintiffs
failure to make a charge for which relief can be granted in regard to Count IV.
THERE CAN BE NO BREACH OF CONTRACT WHERE NO CONTRACT EXISTS
The Plaintiff has an unfortunate tendency of determining the truth or falsity on any issue
based on his say-so with no evidence. If he says its true, its true. If he says its false, its false.
Regarding Count XII, there is no dispute that the agreement signed by Mr. Hoge and
Schmalfeldt was not a valid contract as it lacked the element of consideration. There was no
exchange of anything of value, not even a peppercorn.
Plaintiff has moved for summary judgment on Count XII of his complaint and this
Defendant has filed his reply. The Court should examine that reply and determine there is no
material issue of fact that is undisputed.
There was no consideration, the state of Maryland does not allow for punitive damages in
breach of contract disputes, and one cannot breach a contract that does not meet the legal
requirements to be called a contract.
For that and other reasons this Court should grant Schmalfeldt Motion for Summary
Judgment based on Plaintiffs failure to state a claim for which relief can be granted.

PLAINTIFF MEETS THE TEXTBOOK DEFINITION OF A VEXATIOUS LITIGANT


The Plaintiff also asked this Court to deny Defendants motion that he be found a
vexatious litigant. No matter what this Court decided regarding the motion of Brett and Tetyana
Kimberlin asking for the same relief as this defendant, Mr. Schmalfeldt can point to a long and
storied history of being the victim of Hoges legal harassment.
Hoge states in his motion that it is he who is been the defendant in almost all of the
preceding civil actions. That may be true in the civil Courts. On the other hand, Hoge has
attempted to bring 367 criminal charges against Mr. Schmalfeldt.
Some of these charges border on the ludicrous, such as Hoges claim that a remark
Plaintiff made on a blog talk radio show in February 2013 in which Schmalfeldt slyly referred to
a story he knew that was going to come out on March 15 that would cast an associate of Hoge in
a bad light by saying, and Frey? Beware the Ides of March. Hoge saw that as a direct threat
to his life even though the defendant was referring to Los Angeles county deputy district attorney
Patrick Frey, who blogs under the name Patterico. The audio evidence is clear. However Hoge
took this to be a threat to his life and filed harassment charges with the Carroll County Court
commissioner. Along with a charge of stocking and harassment via electronic equipment, the
harassment charge from the Ides of March comment were nolle prosequi.
The defendant feels that Mr. Hoges actions over the next several years are all the proof
this Court needs to determine him a vexatious litigant.
After the charges mentioned above were nolle prosequi, Hoge wrote a vague Twitter post
ordering that someone using the Twitter handle the liberal grouch and two other people with
different Twitter handles, stop contacting him. This was not a legal cease and assist as it did not
mention Defendant by name. Shortly thereafter the Defendant at mentioned Mr. Hoge in a

tweet and Hoge went to the District Court to swear out a temporary peace order against
Schmalfeldt. It was ultimately denied. He appealed it.
While waiting for that appeal to be heard in the Circuit Court, he filed another peace
order in the District Court where it was also denied.
By the time his original appeal was heard in June 2013, he lied to Judge Thomas
Stansfield, saying that blocking a person on Twitter (a more simple thing to do no one could
imagine, it involves the pushing of a key on the keypad) was every bit of a burden as changing
your telephone number to avoid telemarketers. Judge Stansfield, after admitting he knew
nothing about what he called the Twitter, agreed with that perception and slapped on the sixmonth peace order. He extended it for another six months in December.
More proof of Hoges vexatious nature can be found in his purchase of the world book
and the e-book rights to a profane call him written by the pseudonymous Paul Krendler so that
he and Krendler could copyright that profane, obscene column and prevent Defendant from
using it in a book he was writing about Defendants experiences with Hoge and his associates.
Hoge then sued Defendant in federal Court over publication of that book and using other
things he had written about me in his column on his blog as rebuttal to the charges he made
against me.
During the copyright infringement trial, Hoge filed for a preliminary injunction against
Schmalfeldt and a hearing was held. On July 1, 2014, the judge in that copyright case issued a
31-page memorandum denying the preliminary injunction, as much as telling Hoge that she felt
the case would come down to a determination of the defendants using of his material under the
fair use concept set forth by the US copyright office.

Closely following that, the judge ordered Hoge and Schmalfeldt into a mediation
agreement with the magistrate judge. This is the agreement that Hoge is currently attempting to
charge the defendant with breach of contract.
At the outset, Hoge demanded a figure of around $640,000 for damages. At the
settlement agreement he agreed to walk away with nothing. Schmalfeldt agreed that he would
remove any copyright infringing content on the Defendants blog, of which there was none, and
they both agreed to not use each others material without permission except if such used was
allowed under the blogs terms of service. Hoge immediately changed the terms of service on his
blog to specifically exclude Schmalfeldt and several others from copying and pasting his
material while allowing the world at large otherwise to help themselves.
At the end of that settlement hearing, Hoge shook this Defendants hand and told him he
felt no need to pursue the appeal of yet another Peace Order that had been denied by the Carroll
County District Court. Defendant took Hoge at his word and went to a doctors appointment
instead of the Court hearing, which Hoge attended, securing an uncontested peace order.
During the life of that peace order, Hoge attempted to find Schmalfeldt in violation of the
peace orders no contact provision by inventing reasons to claim Schmalfeldt had contacted him.
For instance, when Schmalfeldt would write something about Hoges blog and link the comment
to its source on Hoges blog, Hoge would receive an automatic Pingback from WordPress, the
platform which hosts his blog. Hoge decided that was a violation of the no contact order and
attempted again to find Schmalfeldt criminally liable. He asked the Carroll County Circuit Court
to hold a show cause hearing to determine why Schmalfeldt should not be held in contempt of
Court for violating the piece order. A day or two before the hearing, Hoge posted a letter on his
blog that was made to seem as if Schmalfeldt had written it and mailed it to him. The signature at

the bottom of the letter was traced from a known document that is available online. Schmalfeldt
objected to the letter which was received by Judge Stansfield, and placed into evidence.
Ultimately judge Stansfield ruled there was no contempt of Court.
A few weeks later, Hoge posted on his blog that his wife, Connie, suffered from bone
cancer in her spine. Schmalfeldt realized he was taking a risk by doing so, but as his last job
before retirement was working in the clinical center at the National Institutes of Health, he
contacted Hoge and told him that whatever their differences were, that Schmalfeldt would be
happy to put the Hoges in touch with people that might be able to help Mrs. Hoge with her
condition. Hoge responded by calling the police. Out of the 367 charges Hoge pushed through
the county Court Commissioners office, this is the only one the states attorney did not nolle
prosequi. A trial was held, and Schmalfeldt was acquitted.

Schmalfeldt was by this time fed up with being the punching bag for WJJ Hoge III. He
filed suit in Howard County Circuit Court alleging a variety of torts. But as spring 2015
progressed, Schmalfeldts wife, Gail, took seriously ill and it was clear by early May that her
condition was terminal.
There was a Court hearing on the lawsuit set for a day that Schmalfeldt did not know for
sure he would be able to attend as he was caring for his dying wife. He asked the Howard County
Circuit Court for an indefinite delay until such as his wife had succumbed to to her illness
because he did not want to be out of the house dealing with Hoge instead of being at home
tending to his wife.
Hoge, for his part, challenged the motion saying there was no way of knowing how long
Schmalfeldts wife would live. Fortunately for Mr. Hoge, Gail Schmalfeldt passed away on June

17, 2015, and the hearing went on as scheduled. As a matter of fact, on the day she died, Hoge
posted a motion with the Howard County Circuit Court declaring that Schmalfeldt motion was
now moot since his wife had in fact died.
That lawsuit was eventually dismissed due to Schmalfeldts mistake in determining
proper jurisdiction.
Twice more in 2015, Hoge attempted to get peace orders against Schmalfeldt. In the
Carroll County Circuit Court, he failed after Schmalfeldt objected to the venue. Immediately
after being rejected, Hoge hurried down to Howard County and filed for the same peace order.
The HC district Court denied him, and he immediately appealed. He also appealed the Carroll
County Circuit Courts finding of improper jurisdiction or venue. Howard County held its
hearing first and declared the matter has been settled and res judicata had applied.
When Caroll County finally got to his appeal, Judge Stansfield again made roughly the
same decision saying that res judicata had applied and a Hoge had no case.
By this time, Schmalfeldt realized that his only recourse to escape the vindictive,
vexatious litigant WJJ Hoge III would be to leave the state of Maryland. In August 2015 he
moved to Wisconsin. Apparently there is no place in the United States where Schmalfeldt will be
safe from the vexatious and vindictive need of WJJ Hoge III to punish him for some unknown
reason as the instant lawsuit was filed after Schmalfeldt left Maryland.
Schmalfeldt is of the firm believe that the only way hes ever going to be allowed to live
in peace and comfort will be if this Court declares Hoge a vexatious litigant, thus requiring him
to get a Courts permission before ever filing any legal action against Schmalfeldt.

PRAYER FOR RELIEF


WHEREFORE, for the reasons stated above, Defendant William M. Schmalfeldt, Sr.,
prays this Court will GRANT his motion for summary judgment in the above titled case due to
Plaintiffs failure to state a claim for which relief can be granted.
ADDITIONALLY, this Defendant prays the Court will find William John Joseph Hoge
III a vexatious litigant, impose whatever sanctions the Court deems appropriate, and require
Hoge to secure permission from the Court before filing any future legal actions against this
Defendant.

Dated thus 24th Day of September, 2016

Respectfully submitted

_____________________________
William M. Schmalfeldt, Sr., Pro Se
3209 S. Lake Dr., Apt 108
Saint Francis, WI 53235
414-249-4379
bschmalfeldt@twc.com
CERTIFICATE OF SERVICE
I Certify that on the 24th day if October 2016, I served copies of the above on the
following persons via electronic mail by prior agreement,
William John Joseph Hoge, by email
Brett and Tetyana Kimberlin, by e-mail

_____________________________
William M. Schmalfeldt, Sr., Pro Se

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