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William John Joseph Hoge,

Plaintiff,
v.

IN THE

CIRCUIT COURT FOR CARROLL COUNTY


MARYLAND

Brett Kimberlin, et al.,


Defendants.

Case No. 06-C-16-070789

PLAINTIFFS OPPOSITION TO DEFENDANTS BRETT AND TETYANA KIMBERLINS


MOTION TO DISMISS (DOCKET ITEM 58)
COMES NOW William John Joseph Hoge and opposes Defendants Brett and
Tetyana Kimberlins Motion to Dismiss as improper under Rule 2-613 and as
untimely under Rule 2-321. In support of his motion Mr. Hoge states as follows:
I. THE KIMBERLINS MOTION TO DISMISS IS IMPROPER
The Kimberlins failed to file a timely answer to Mr. Hoges complaint, and he
has filed a Request for Orders of Default (Docket Item 55). That Request meets all
the requirements of Rule 2-613(b), and default is mandatory under that Rule. The
Court has not yet issued Orders of Default, but when the Orders are issued, the
Kimberlins must follow the procedure prescribed in Rule 2-613(d) if they wish to
move to vacate the Orders. Filing a motion to dismiss is not part of that process.
II. THE KIMBERLINS MOTION IS UNTIMELY
The Kimberlins filed their Motion to Dismiss on 27 June, 2016, fifty-three
days after service of process was effected on them. Docket Items 30 and 31. That
was more than three weeks after the time allowed to file an answer to the
Complaint or a Rule-2-322 motion had expired.

III. THE KIMBERLINS MOTION MISSTATES THE LAW ON VENUE AND LITIGATION
PRIVILEGE
As they have in their previous filings, the Kimberlins continue to claim that
this Court in an improper forum for the instant lawsuit. They are, of course, wrong.
Because there are multiple defendants with no single venue applicable, Md.
Cts. & Jud. P. 6-201(b) allows this suit to be brought in a county where any one of
the defendants may be sued. Because Defendant Schmalfeldt, whose motion to
dismiss has been denied (Docket Items 53 and 54), lives in Wisconsin is included in
the suit, Md. Cts. & Jud. P. 6-202(11) allows suit to be brought in any county in
the State. Mr. Hoge can sue Schmalfeldt in Carroll County, so venue is proper for
all the Defendantsincluding the Kimberlinsin Carroll County.
Brett Kimberlin is being disingenuous making such a venue claim. In
Kimberlin v. National Bloggers Club, et al. (II), Case No. 403868 (Md. Cir.Ct. Mont.
Co. 2016), he relied on the presence of out-of-state codefendants in that lawsuit to
hale Mr. Hoge into the Circuit Court for Montgomery County. He knows the law
and is purposefully misstating it.
None of the case law cited by the Kimberlins to support a defense based on
litigation privilege is on point. The cases cited deal with immunity from defamation
claims, but Counts I and XI in Mr. Hoges Complaint are not about defamation.
Under Count I, Mr. Hoge is suing Brett Kimberlin for malicious prosecution. Under
Count XI, he is suing both Brett and Tetyana Kimberlin for malicious prosecution.
The Complaints counts alleging defamation do not relate to the false Applications

for Statements of Charges filed by the Kimberlins. Further, Mr. Hoge is not suing
Tetyana Kimberlin for defamation at all.
The Kimberlins misstatement of the law relating to litigation privilege is
also knowing and purposeful. They attempted to raise the same defense in a Motion
for Summary Judgment in Walker v. Kimberlin, et al., Case No. 398855V (Md.
Cir.Ct. Mont. Co. 2016).1 A copy of that Motion is attached as Exhibit A. In fact, a
good bit of their instant Motion to Dismiss appears to have been cut-and-pasted
from their failed Motion for Summary Judgment. During oral argument at the
hearing on that Motion on 5 May, 2016, Judge Mason told the Kimberlins that their
litigation privilege defense was mistaken and that if it were correct, the tort of
malicious prosecution could not exist. Their Motion for Summary Judgment was
denied.2 Given the similarity of the facts between the Walker case and the instant
lawsuit, both the Kimberlins should know that their litigation privilege defense is
frivolous.
IV. MR. HOGE HAS PROPERLY PLEADED ALL THE ELEMENTS OF EACH TORT
ALLEGED
The elements of the tort of malicious criminal prosecution are
(a) a criminal proceeding instituted or continued by the defendant
against the plaintiff, (b) termination of the proceeding in favor of
the accused, (c) absence of probable cause for the proceeding, and
1

The Walker v. Kimberlin, et al. lawsuit alleges malicious prosecution by Brett and
Tetyana Kimberlin for filing similar false charges against Aaron Walker at the
same times as the false charges of Count I and XI were filed against Mr. Hoge.
2

See Walker v. Kimberlin, et al., Case No. 398855V, Hearing, Docket Item 129 (Md.
Cir.Ct. Mont. Co. May 5, 2016).
3

(d) malice, or a primary purpose in instituting the proceeding other


than that of bringing an offender to justice.
Brewer v. Mele, 267 Md. 437, 440, 298 A.2d 156 (1972). With respect to the first two
elements, the Kimberlins instigated both criminal proceedings against Mr. Hoge,
and both were terminated in Mr. Hoges favor. Note that an arrest is not a
necessary element; the issuing of a summons is sufficient, Krashes v. White, 275
Md. 549, 554 (1975), and the entry of a nolle prosequi constitutes a termination in a
defendants favor, Hines v. French, 157 Md.App. 536, 852 A.2d 1047, 1057 (2004).
With respect to the third element, neither charge had probable cause. Mr. Hoge
alleges that the statements made by the Kimberlins were knowingly false.
Therefore, there was no proper basis for either charge. As for the fourth element,
malice may be inferred from the lack of probable cause. Okwa v. Harper, 360 Md.
161, 757 A.2d 118, 133 (2000).
As for defamation, the Court of Appeals has stated that
[u]nder Maryland law, to present a prima facie case of defamation,
a plaintiff must establish four elements: (1) that the defendant
made a defamatory statement to a third person, (2) that the
statement was false, (3) that the defendant was legally at fault in
making the statement, and (4) that the plaintiff thereby suffered
harm.
Offen v. Brenner, 402 Md. 191, 935 A.2d 719, 723-724 (2007). The Complaint
properly alleges that the Defendants made defamatory statements to third parties
by publishing the articles and comments on the Internet, by sending defamatory
emails, and/or by filing one or more false reports of targeted abuse with Twitter.
The alleged facts demonstrate that the statements were false and that the
4

Defendants acted with actual malice, i.e., with knowledge that it was false or with
reckless disregard of whether it was false or not. Thus, Defendants are at fault. As
noted below, the nature of the defamatory remarks makes each defamation count a
case of defamation per se.
V. THE DISTRICT COURT IS NOT THE PROPER FORUM FOR THE INSTANT
LAWSUIT
While the Kimberlins try to make out a case for the proposition that Mr.
Hoge has not adequately pleaded damages sufficient for a suit in the Circuit Court,
they are wrong. First, Mr. Hoge alleges in Counts II through X that the various
members of the civil conspiracy defamed him by knowingly and falsely accusing him
of committing crimes and by communicating those allegations to third parties. That
amounts to defamation per se, so damages should be presumed. General Motors
Corp. v. Piskor, 277 Md. 165, 174 (1976).
Second, Mr. Hoge alleges breach of contract in Count XII and is seeking
damages equivalent to the statutory damages due under 17 U.S.C. 504(c). At up
to $150,000 per infringement, the amount at issue is well beyond the range allowed
in the District Court.
Third, even if Mr. Hoges claims did not add up to a sufficient monetary
figure, the Circuit Court is still the proper forum for the instant lawsuit because
Mr. Hoge is seeking injunctive relief. The Circuit Court has exclusive jurisdiction
over cases in equity with only limited exceptions not applicable to this lawsuit. Md.
Cts. & Jud. P. 4-402.

CONCLUSION
Any one of the reasons cited above is sufficient for this Court to deny the
instant Motion to Dismiss. It is improper because the Kimberlins are in default and
have not taken the proper steps to vacate their default. It is untimely, having
arrived more than three weeks past the deadline for an answer or Rule 2-322
motion. The Kimberlins have misstated the law on venue and litigation privilege.
Mr. Hoge has properly pleaded the elements of the torts alleged in his Complaint.
Because Mr. Hoge is seeking injunctive relief, the Circuit Court has exclusive
jurisdiction.
WHEREFORE, Mr. Hoge requests the Court to DENY Defendants Brett and
Tetyana Kimberlins Motion to Dismiss (Docket Item 58) and to GRANT such other
relief as the Court may find just and proper.
Date: 5 July, 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 5th day of July, 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 (last known address)
William Ferguson by First Class U. S. Mail to 10808 Schroeder Road, Live Oak,
California 95953
Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817 (last known address)
Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817 (last known address)

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: 5 July, 2016
William John Joseph Hoge

Exhibit A

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

PROPOSED ORDER
Upon consideration of Defendants Brett and Tetyana Kimberlins Motion to
Dismiss (Docket Item 58), Plaintiffs Opposition thereto, and any Reply to Plaintiffs
Opposition, this _________ day of _________________, 2016, said motion is DENIED.
IT IS SO ORDERED.

________________________________
JUDGE FRED S. HECKER,
Circuit Court for Carroll County

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