IN THE CIRCUIT COURT FOR CARROLL COUNTY, MARYLAND

WILLIAM JOHN JOSEPH HOGE III

Plaintiff pro se,

)
)
)
v.
)
Case No. 06-C-16-070789
)
BRETT KIMBERLIN, et al
)
Defendants
)
______________________________________________________________________________
DEFENDANT SCHMALFELDTS 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
NOW COMES Defendant and Counterclaim William M. Schmalfeldt, Sr., of 3209 S. Lake Drive,
Apartment 108, Saint Francis, Wisconsin with Motion for Summary Judgment for the Plaintiffs Failure to State a
Claim Upon Which Relief Can Be Granted, asking this Court to declare that Plaintiff William John Joseph Hoge
III be declared a vexatious litigant.
A.

There are no allegations made against this Defendant in Count I of the Complaint.

B.

There are no allegations made against this Defendant in Count II of the Complaint.

C.

There are no allegations made against this Defendant in Count III of the Complaint.

D.

Defendant is entitled to Summary Judgment on Count IV of the Complaint.

1.

Burden of proof and elements

The Plaintiffs claim of defamation for a comment made by this Defendant in an online blog regarding an
article written by him does not meet the standards of defamation in the state of Maryland. Set aside that the
Plaintiff doesnt claim per se or per quod defamation, he seeks to hold this Defendant liable for agreeing with the
statements made in an online article the Plaintiff did not like.1 The Plaintiff claims the comment endorses the

1
In a comment to the 4 March article Bill Schmalfeldt wrote Matt, that was an appropriatelyu
brutal and true depiction of events. See Complaint at 43

contents of the article as truthful and is, in essence, a restatement of the defamatory remarks contained in the 4
March article.
This argument evaporates in the light of the US Supreme Courts ruling in New York Times v. Sullivan,
376 U.S. 254 (1964), further developed by the Courts ruling in Gertz v. Robert Welch, Inc. 418 US 323 (1974).
These landmark Supreme Court rulings revolutionized the common law of defamation by shifting the burden of
proof from the defendant to the plaintiff. As a result, it is up to the Plaintiff to prove the falsity of the statement and
the Defendants element of fault with clear and convincing proof.2
As in this case the Defendant was merely agreeing with what the articles author had written, it is the
Plaintiffs to prove first that the article was untrue, that the Defendant knew it was untrue but published his
comment anyway. The Plaintiff offers not a shred of evidence to prove his allegation that Defendants comment
implies an independent and undisclosed knowledge of facts not in the article. The Plaintiff asks the court to take
him at his word that the statements in the article were false, that this Defendant knew they were false and he acted
with a reckless disregard for the truth, with malice.
As Plaintiff has not even attempted to prove the falsity of the allegations made in the article, he can not
prove the allegations were untrue, thus he cannot prove this Defendant acted with malice by endorsing the alleged
defamatory statement.
Also unproven by the Plaintiff: How was he damaged by the publication of the article? How was he
damaged by this Defendants comment regarding the article. Since Hoge does not claim defamation per se, proof
of damage is required for this Court to find in his favor.
As Plaintiff has failed to state a claim for which relief can be granted, Defendant Schmalfeldt is entitled to
Summary Judgment for the Plaintiffs failure to state a claim for which relief can be granted.

2
Franklin, Winners and Losers and Why: A Study of Defamation Litigation, 1980 Am. B. Found.
Research J. 455, 476.

E.

There are no allegations made against this Defendant in Count VI of the Complaint.

F.

There are no allegations made against this Defendant in Count VII of the Complaint.

G.

There are no allegations made against this Defendant in Count VIII of the Complaint.

H.

There are no allegations made against this Defendant in Count IX of the Complaint.

I.

There are no allegations made against this Defendant in Count X of the Complaint.

J.

There are no allegations made against this Defendant in Count XI of the Complaint.

K.

Defendant Schmalfeldt is entitled to Summary Judgment as to Count XII of the

Complaint.
1.

The Settlement Agreement Lacks the Elements of a Contract

In order for a contract to exist, there must be three elements: Offer, Acceptance and Consideration. The
Settlement Agreement signed by Plaintiff and this Defendant on May 27, 2014 consisted of an offer from both
parties to end a copyright infringement suit. The acceptance came with the signing of the agreement. But there was
nothing that could be called consideration to be found on the document as there was nothing of value transacted
between the parties.
2.

The Agreement was broken by the Plaintiff on numerous occasions.

The Agreement says The Parties agree that they will not post or re-publish any work or
article written by the other without receiving written permission, in advance, from the other
party, unless the terms of service permit republication without permission. (Emphasis added)
However, the Plaintiff has time and time again posted and republished work of the Defendant
from his Twitter account without his permission. Plaintiff seems to operate under the assumption
that publishing a post on Twitter gives him the right to cut and paste the Twitter post and place it
on his personal website. This is not the case. Twitter Terms of Service do not allow for cutting
and pasting of Tweets. Twitter has established a system for embedding tweets, whereby one

who wishes to copy a Tweet to a blog can do so, and the reader clicking the embedded tweet will
be taken directly to the originators timeline. What Hoge does is steal the content from Twitter
and post it on his own server. The Twitter Terms of Service do not allow for that in any way,
shape or measure.
3.

No Punitive Damages in Maryland Breach of Contract cases

Even if Plaintiff were to somehow convince the Court that Defendants stealing of
Plaintiffs content is wrong while Plaintiffs theft of Defendants content was righteous, there is
nothing this Court could award to Plaintiff to compensate him. The State of Maryland does not
allow for punitive damages in Breach of Contract cases. The Court would need to determine the
value of the snippets allegedly taken from Hoges blog and then determine how much Hoge has
suffered financially as a result of these segments being taken from his blog.
Since even the most egotistical blogger on Earth could never claim brief paragraph
snippets to have a real, monetary value, once again this Plaintiff is asking for something he
cannot receive. As a result, Defendant is entitled to Summary Judgment for failure to state a
claim for which relief can be granted.
L.

It is long since time that this Court found that William John Joseph Hoge III

is a vexatious litigant.
1.

Defendant has been harmed by the constant legal badgering of the Plaintiff

Ever since February 2013, this Defendant has been under legal jeopardy because of the
vindictive, vexatious nature of this Plaintiff. Whether one prefers to think of them as 10
individual cases or as 367 individual criminal charges, this Plaintiff clearly is bent on finding this
Defendant guilty of something, anything, to satisfy his need to punish this Defendant for
Something. The separate criminal cases are displayed in Exhibit A. The failed and successful

attempts to get Peace Orders against Defendant are displayed in Exhibit B. The lawsuits filed
against this Defendant are shown in Exhibit C.
This Plaintiff has claimed to others (Exhibit D) that he would rely on the Republican
Sheriff and States Attorney of Carroll County to enforce his charges against this Defendant, or
at least get search warrants for his computer and servers.
Defendant has alleged that in Plaintiffs attempt to have this Court find the Defendant in
Contempt for violating the peace order, the Plaintiff entered a letter into evidence that was not
written by the Defendant, bearing the Defendants signature traced from another document.
Plaintiff has claimed that voice messages left on his phone were from this defendant when in fact
they were from a Phone Prank service the Defendant had nothing to do with.
Defendant tweeted to Hoge on July 17, 2016, Bet you wish you hadnt asked
@paulzkrendler (Patrick Grady of Palatine, IL) and @mrvogon (George M. Howell of
Germantown, MD) to help jazz up your contempt evidence against me, eh, @wjjhoge?
Seems stupid now?
His reply seems at the very least to be an admission of guilt.
You Lose, he wrote. (Exhibit E)
Given the current lawsuit, the suits that came before, the 367 criminal charges, the failed
peace orders, the successful peace orders Hoge has burdened this Defendant with since 2013, it
seems reasonable to believe the only way this Plaintiff is ever going to let this Defendant alone is
to declare him a vexatious litigant and require him to seek approval of the Court before filing
another of his unwarranted, vindictive legal actions against the Defendant.

PRAYER FOR RELIEF

WHEREFORE, this Defendant asks the Court to grant Summary Judgment for this Defendant tossing
out all allegations against Schmalfeldt made by Hoge, and to issue an order declaring William John Joseph Hoge
III as a vexatious litigant, requiring approval of a Court before ever filing a legal action against this Defendant in the
future, as well as for any and all other relief this court may deem just and roper.
Date:

September 28, 2016

Respectfully submitted,

/S/WILLIAM M. SCHMALFELDT, SR.

William M. Schmalfeldt, Sr., pro se
3029 S. Lake Dr, Apt. 108
Saint Francis, WI 53235
(414) 249-4379
bschmalfeldt@twc.com
CERTIFICATE OF SERVICE
I certify that on the 3rd day of October, 2016, a copy of this pleading and motion has been sent by
electronic mail to the Plaintiff and other Defendants in this case in accordance with earlier agreements.

/S/WILLIAM M. SCHMALFELDT, SR.

William M. Schmalfeldt, Sr.

EXHIBIT A
CRIMINAL CHARGES SOUGHT AGAINST WILLIAM SCHMALFELDT BY WJJ HOGE III
1.

0S00058205 Harassment as a Course of Conduct

Electronic Mail Harassment
Illegal Access to a Computer

2.

2S00058501 Harassment as a Course of Conduct

3.

5S00058427 Failure to Comply with a Peace Order

4.

3S00059643 Failure to Comply with a Peace Order (Five charges)

5.

6S00059086 Failure to Comply with a Peace Order (Three charges)

6.

4S00060729 Electronic Mail Harassment

Failure to Comply with a Peace Order (36 charges)
Harassment as a Course of Conduct

7.

3S00060735 Failure to Comply with a Peace Order (198 charges)

8.

0S00060886 Failure to Comply with a Peace Order (88 charges)

9.

1S00060635 Failure to Comply with a Peace Order (29 charges)

10.

6S00064882 Failure to Comply with a Peace Order

TEN CASES, 367 INDIVIDUAL CHARGES, 366 NOLLE PROSEQUI, 1 ACQUITTAL

EXHIBIT B
FAILED AND SUCCESSFUL PEACE ORDER ATTEMPTS
1.

1002SP001912013 Denied, Appealed to Circuit Court

2.

06C13063359 Circuit Court Appeal Granted, extended additional six months

3.

1002SP002432013 Denied

4.

1002SP005252014 Denied, Appealed to Circuit Court

5.

06C14067023 Circuit Court Appeal Granted

6.

1002SP002942015 Denied, Appealed, Appeal Denied

7.

1001SP005802015 Denied, Appealed, Appeal Denied

EXHIBIT C
OTHER ACTIONS FILED BY HOGE
06C14067023 SHOW CAUSE CONTEMPT OF COURT, NO CONTEMPT

1:14-cv-01683-ELH US DISTRICT COURT FOR THE DISTRICT OF

MARYLAND COPYRIGHT SUIT
06C16070789 THE CURRENT LAWSUIT

EXHIBIT D
From: WJJ Hoge <
>
To: Patrick Frey <patterico@gmail.com>

Mon, Feb 18, 2013 at 6:43 AM

Ive amassed a pile of evidence which I will be turning over to the Carroll County Sheriffs
Office today. The evidence points to the following crimes:
Bill Schmalfeldt
Making the SWATing threat using Lonely Conservatives ID (Unauthorized Access to a
Protected Computer System, 3 years and/or $1,000)
Attempting to post a comment using Stacy McCains ID (Unauthorized Access to a Protected
Computer System, 3 years and/or $1,000)
Misuse of Electronic Communication (at least 6 counts at 1 year and/or $500 each)
Conspiracy to cause Reckless Endangerment (5 years and/or $5,000)
Conspiracy to make a False Statement Regarding a Crime or Hazard (6 months and/or $500)
Conspiracy to make a False Alarm (5 years and/or $5,000)
Neal RauhauserExhibit D is redacted pursuant to a Protective Order issued in
Kimberlin
v. Frey,Endangerment
Case No. 13-CV-03059-GJH
(D.Md.).
Conspiracy to
cause Reckless
(5 years and/or $5,000)
Conspiracy to make a False Statement Regarding a Crime or Hazard (6 months and/or $500)
Conspiracy to make a False Alarm (5 years and/or $5,000)
Brett Kimberlin
Misuse of Electronic Communication (at least 2 counts at 1 year and/or $500 each)
Conspiracy to cause Reckless Endangerment (5 years and/or $5,000)
Conspiracy to make a False Statement Regarding a Crime or Hazard (6 months and/or $500)
Conspiracy to make a False Alarm (5 years and/or $5,000)
Well see how many of the charges stick. The first three on Schmalfeldt should be airtight and
should result in a search warrant for his computer and remote servers. If just one of the
conspiracy charges goers through, the Sheriff should get warrants to seize Rauhausers and
Kimberlins computers and servers as wellbefore they can have unfortunate head crashes on
their hard drives.
These are all state charges that would be handled by the Carroll County States Attorney. BTW,
Jerry Barnes is a Republican. So is Ken Tregoning our Sheriff.
Ive got other leads on other possible state charges that searches of the computers may confirm.

Charges Filed
WJJ Hoge
Mon, Feb 18, 2013 at
6:57 PM
To: Lee Stranahan, Mandy Nagy, Robert McCain, Patrick Frey <patterico@gmail.com> Mrs. B
CC: Aaron Worthing
The procedure here in Carroll County is a bit different from Howard County. The Commissioner
is going to consult with the States Attorneys Office on who get charged with what. That will
take a few days. The Commissioner clearly understands that Team Kimberlin will destroy
evidence on their computers, etc., given any warning and understands the need to execute search
warrants without warning.
Please keep this quiet until the warrants are served.
Please call or email me with your questions.
John Hoge
Cell (410) 596-2854

EXHIBIT E