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Plaintiff,
v.
IN THE
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
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,
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)
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
IN THE
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