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William M. Schmalfeldt, Sr., Plaintiff,

v.

William John Joseph Hoge, et al., Defendants.

IN THE CIRCUIT COURT FOR HOWARD COUNTY, MARYLAND

Case No. 13-C-15-102498 OT

DEFENDANT HOGES REPLY TO PLAINTIFFS OPPOSITION TO THE MOTION TO DISMISS (DOCKET NO. 8/1)

COMES NOW Defendant William John Joseph Hoge and replies to Plaintiff’s

opposition to Mr. Hoge’s Motion to Dismiss the above captioned matter for failure to

state a claim upon which relief can be granted pursuant to Maryland Rule

2-322(b)(2). In reply Mr. Hoge states as follows:

PLAINTIFF ADMITS HIS COMPLAINT IS NOT WELL-PLEADED

Plaintiff states that he is not “under any defendant-imposed obligation to lay

out each and every element of his case[.]” Opposition at 2. This is tantamount to

an admission that he has failed to allege the elements necessary to survive a motion

to dismiss. Even without that admission, it is clear that Plaintiff does not

understand what he is obliged to do under the Maryland Rules.

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As noted in the Motion to Dismiss (“MTD”), Plaintiff’s Complaint is a jumbled

mess which does not lay out the elements of any of the torts he allegedly suffered.

His Opposition does not show how he has complied with the Maryland Rules or even

make reference to them. Indeed, given his referrals to the Federal Rules of Civil

Procedure (and outdated case law interpreting them) in his Opposition, it seems

that Plaintiff is unsure of which court he has brought the instant lawsuit.

His misunderstanding of his duties at this point in this litigation is further

exemplified by his statement that “Plaintiff has not made any conclusory

allegations. All allegations include the basis of law on which they were made.”

Opposition at 4. He clearly misunderstands that the term refers to conclusory

allegations of fact. Moreover, his assertion that has not made conclusory

allegations is obviously false on the face of his Complaint.

Plaintiff’s assertion that he does not have to lay out the elements of his case

is nonsense. He has a duty to present a well-pleaded complaint

for the purpose of informing the court, whose duty it is to declare the law arising upon these facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.

Read Drug v. Colwill Constr., 250 Md. 406, 414 (1968). The Court of Appeals has

also said,

The well-pleaded facts setting forth the cause of action must be pleaded with sufficient specificity; bald assertions and conclusory statements by the pleader will not suffice.

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RRC v. BAA, 413 Md. 638, 994 A.2d 430, 434 (2010).

Instead of properly pleading his case, Plaintiff’s Complaint and Opposition

wander off to extraneous topics such as attempts to address comments made on Mr.

Hoge’s blog. Opposition at 3, 9.

Thus, at the most basic level Plaintiff has failed to state a claim upon which

relief can be granted. The instant lawsuit should be dismissed pursuant to Md.

Rule 2-322(b)(2).

THE ENTIRE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO ALLEGE ANY DAMAGES OR DEMONSTRATE MALICE

Plaintiff does not deny that he failed to plead any damages in his Complaint.

He tries to work around that failure by making new allegations in his Opposition.

Even if those allegations were not improper, they are still too speculative to survive

a motion to dismiss. “Damages must be proven with reasonable certainty, and may

not be based on mere speculation or conjecture.” Dynacorp Ltd. v. Aramtel Ltd., 208

Md.App. 403, 56 A.3d 631, 685 (2012). Plaintiff’s Opposition is littered with

speculation: “Who can tell how many books Plaintiff would have sold were it not for

the defamation [?]” (Opposition at 17.) He obviously has no idea how many he

might have sold. He is equally speculative about how many CDs he has failed to

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sell (Id.) or how many speaking engagements he has not been offered (Id. at 18.).

Such speculation is not a valid pleading of damages. Plaintiff has not alleged the

existence of a shred of evidence showing any loss proximately caused by any act by

Mr. Hoge.

Plaintiff also attempts to get around his failure to properly plead damages by

relying on the doctrine of defamation per se. Even if Plaintiff had properly alleged

that Mr. Hoge had falsely accused him of a crime (and he has not), under Shapiro v.

Massengill, 105 Md.App. 743, n. 10 (1995), Plaintiff must allege actual malice in

order to be entitled to a presumption of harm to his reputation or to damages. He

has failed to do so.

Plaintiff seems to believe that all he has to do is prove that Mr. Hoge does not

like him in order to prove malice. He is wrong. “The ‘actual malice’ standard has

nothing to do with ‘bad motive’ or ‘ill will’ or ‘malice’ in the ordinary sense of the

term.” Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1551 n. 8 (4th Cir. 1994).

“‘Malice’ in the sense of ‘ill-will’ [is] an insufficient basis for overcoming a

conditional privilege or for awarding punitive damages in any defamation action.”

Marchesi v. Franchino, 283 Md. 131, 138-139, 387 A.2d. 1133-1134 (1978). Plaintiff

quotes a law review article—which he mischaracterizes as Maryland Court of

Appeals decision (Opposition at 5)—stating that the law of defamation would not

necessarily be changed by Gertz v. Robert Welch, Inc., 418 US 323 (1974). That

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prediction, while reasonable when it was published, has not withstood the test of

time. The Court of Appeals was quite clear in Telnikoff v. Matusevitch:

In a series of opinions after New York Times Co. and Gertz, this Court substantially changed the Maryland common law regarding defamation actions even in areas where the changes were not mandated by the First Amendment and Article 40 of the Maryland Declaration of Rights. See … particularly Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688.

Telnikoff v. Matusevitch, 347 Md. 561, 702 A. 2d 230, 246 (1997), footnote omitted.

The Court of Appeals continued,

Furthermore, we held that in all defamation actions, “neither presumed nor punitive damages” may be recovered “unless [the plaintiff] establishes liability under the more demanding New York Times standard of knowing falsity or reckless disregard for the truth.” 276 Md. at 601, 350 A.2d at 700.

Id. Thus, the New York Times standard requiring a showing of actual malice is a

part of a well-pleaded defamation claim. New York Times v. Sullivan, 376 U.S. 254,

279-280 (1964).

Plaintiff has not only failed to plead malice, he has demonstrated that he

does not even know what the term means in relation to defamation law.

Given Plaintiff’s complete failure to allege damages or malice necessary for a

presumption of damages alone, the instant lawsuit should be dismissed pursuant to

Md. Rule 2-322(b)(2).

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THE CLAIMS OF DEFAMATION SHOULD BE DISMISSED BECAUSE PLAINTIFF FAILED TO PLEAD WITH SUFFICIENT SPECIFICITY

Plaintiff never specifies the who/what/when/where/how of his claims. None of

Mr. Hoge’s statements cited are quoted with sufficient length or context to allow the

Court to determine if they might be actionable. This renders the allegations

deficient as a matter of law. See, e.g., Brown v. Ferguson Enters., Inc., No. 12-

CV-1817 at *5 (D.Md. Dec. 11, 2012) (dismissing Maryland state defamation claims

because they “contain no specific description of the content of the alleged

statements, nor when and how they were communicated”).

Thus, the defamation claims should be dismissed pursuant to Md. Rule

2-322(b)(2).

PLAINTIFF HAS NOT PLEADED THAT MR. HOGE ENGAGED IN DEFAMATION WITH REGARD TO ACCUSATIONS OF EXTORTION

In addition to the deficiencies mentioned above, Plaintiff has not adequately

pleaded that Mr. Hoge defamed him by alleged accusations of extortion.

It is obvious on the face of Plaintiff’s email included in his Opposition (at 7, 8)

that a reasonable person could interpret that email as a “do this or else” threat.

The Plaintiff quotes himself as writing, “Now, you can make it easy or you can make

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it harder and more expensive.” Id. Even without the context of Plaintiff’s phone

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calls to NASA about alleged copyright infringement by Mr. Hoge, Digital

Millennium Copyright Act (“DMCA”) takedown threats, and repeated attempts to

induce Mr. Hoge provide the true identity of “Paul Krendler,” these words can quite

reasonably interpreted as an extortionate threat. It is Plaintiff’s duty to prove that

Mr. Hoge’s words were false (See Telnikoff, supra.), but through his own pleading he

has shown that Mr. Hoge’s words were true.

Plaintiff seems to believe that any reference to the email characterizing it as

extortionate is defamatory because that is an accusation of a crime. That idea is

contradicted by the Supreme Court’s ruling in Greenbelt Publishing v. Bresler, 398

U.S. 6 (1970). In that case, which was an appeal from the Maryland Court of

Appeals, Greenbelt Publishing was accused of defamation for referring to a person’s

political position as being equivalent to “blackmail.” The Court rejected the view

that accusing a person of “blackmail” was automatically a reference to the crime of

extortion but recognized instead that the term was used in the more colloquial

sense. The fact is such “rhetorical hyperbole,” (Id. at 14.) is an everyday part of

normal conversation and is not an event justifying litigation.

Thus, any claim that Mr. Hoge defamed Plaintiff with any alleged accusation

of extortion should be dismissed.

  • 1 Mr. Hoge is an engineering contractor at Goddard Space Flight Center.

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PLAINTIFF HAS NOT PLEADED THAT MR. HOGE ENGAGED IN DEFAMATION WITH REGARD TO ACCUSATIONS OF OBSCENITY

To begin, Plaintiff admits that Mr. Hoge is entitled to his opinion that the

image in question is obscene.

Therefore, referring to my work as “obscene” is a matter of Mr. Hoge’s opinion. And if Mr. Hoge wishes to apply 1973 and 1974 standards to “obscenity,” well that’s his right.

Opposition at 6. If Mr. Hoge is entitled to the opinion that the image is obscene,

then he is entitled to express that opinion, contrary to what the Plaintiff seems to

think. For that reason alone, the Plaintiff has given away any claim that Mr. Hoge

defamed him by allegedly calling some of his work obscene.

For instance, in Jacobellis v. Ohio, 375 U.S. 184, 197 (1964), Justice Potter

Stewart famously struggled to define obscenity in his concurring opinion, admitting

it “may be indefinable.” He went on to write: “I shall not today attempt further to

define the kinds of material I understand to be embraced within that shorthand

description; and perhaps I could never succeed in intelligibly doing so. But I know

it when I see it.” Id. Courts have regularly held that statements that are “loosely

definable” or “variously interpretable” cannot support a claim for defamation.

Ollman v. Evans, 750 F.2d 970, 980 (D.C. Cir., 1984); see also Henry v. National

Ass'n of Air Traffic Specialists, 836 F.Supp. 1204, 1215 (D.Md., 1993) (applying

Ollman to Maryland state law) and Buckley v. Littell, 539 F.2d 882 (2nd Cir., 1976)

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(holding that terms such as “fascist” and “totalitarian” cannot be defined precisely

enough to allow for a defamation claim). If the alleged defamatory term cannot be

defined precisely, it cannot be proven true or false. If a Supreme Court justice has

such difficulty defining obscenity in the criminal law, then defining the term as

used in ordinary discourse with precision is impossible. Therefore, whether a work

is obscene or not is an opinion, privileged under the First Amendment, and

expression that opinion cannot give rise to a claim for defamation.

However, the image in question is very likely to meet the Miller test for

obscenity. Miller v. California, 413 U.S. 15, 23 (1973). In recognition of the court’s

decorum, a heavily censored version of the image is attached as Exhibit A.

  • 2 By the

use of Photoshop or some similar program, Plaintiff’s original image depicts a

younger version of Mr. Hoge in an apparently homoerotic photograph. Mr. Hoge is

surrounded by several naked men, placed in a manner and with a caption

suggesting Mr. Hoge was about engage in fellatio with all of them. Thus, far from

being a “soft-R” image as the Plaintiff has misleadingly told this court (Opposition

at 6.), the image is very likely to be considered obscene. Certainly, Mr. Hoge’s

opinion that it is obscene is entirely reasonable.

The Court should note from Exhibit A that Plaintiff described the image as

obscene. Mr. Hoge published Plaintiff’s statement verbatim. Since Plaintiff’s

  • 2 An uncensored version can be provided at hearing.

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original publication of the image, Mr. Hoge has continued to use Plaintiff’s original

characterization both in public commentary and in court filings. Plaintiff is

essentially making the assertion that accurately quoting him is defamatory.

For all these reason, any claim that Mr. Hoge defamed Plaintiff with any

alleged accusation of obscenity should be dismissed.

PLAINTIFF HAS ADMITTED THAT HE HAS A HISTORY OF ALTERING DOCUMENTS

Plaintiff claims that Mr. Hoge defamed him by claiming he had a

history of altering documents. Opposition at 6. While Mr. Hoge has no

obligation to prove these allegations true, the Plaintiff has helpfully provided

such proof in his opposition. He admits that he altered a document, but

claims he did so without intent to deceive. Id. at 6, 7. While Plaintiff’s public

statement accompanying the presentation of this altered document can be

understood as sarcastically indicating that it was genuine, his intent is

beside the point. He admits that he alter a document. Thus, he admits that

what Mr. Hoge wrote is true—negating the element of falsity.

Furthermore, the Plaintiff has altered the documents attached as

exhibits to his Complaint and his Oppositon. This is obvious on the face of

them. For example, documents have notations added, and extracts are

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presented as if they are complete documents. This is a further demonstration

that the Plaintiff has a habit of altering documents.

Thus, any claim that Mr. Hoge defamed the Plaintiff by allegedly

stating that the Plaintiff has altered documents should be dismissed.

PLAINTIFF SUPPORTS HIS DMCA TAKEDOWN CLAIM WITH ALTERED DOCUMENTS

Plaintiff complains that Mr. Hoge has defamed him by referring to the

takedown notice as “bogus.” Under the requirements of 17 U.S.C. § 512, someone

filing a DMCA takedown notice must swear under penalty of perjury that he is the

owner of the copyrighted material or the owner’s authorized agent. In the case of

the NASA material, Plaintiff was neither. He did not have standing to file the

notice. The notice was, in fact, bogus.

Plaintiff’s alteration of the email sent by WordPress, the Internet hosting

provider for Hogewash!, to Mr. Hoge informing him of the DMCA takedown notice

can be seen by comparing the version shown in Exhibit G of the Complaint with the

version shown in Exhibit B of the MTD. The list of NASA documents taken down

by WordPress because of Plaintiff’s DMCA notice has been deleted from the alleged

email from WordPress shown in Plaintiff’s exhibit. Also, none of the boxed-in text

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shown in the email Plaintiff claims he sent to WordPress appears in the actual

email received from WordPress as shown in the MTD exhibit.

Plaintiff’s allegation that the takedown notice forwarded to Mr. Hoge by

WordPress contained the boxed-in text is conclusory at best. Given Plaintiff’s

admitted history of altering documents, it is reasonable to suspect that the alleged

email shown in Plaintiff’s Exhibit G is a forgery. That assumption is supported by

the fact that WordPress never contacted Mr. Hoge about any of the items listed in

the boxed-in text and never disabled access to them as required under the DMCA.

Only the NASA material was affected. Certainly, the suggestion that Mr. Hoge

deleted any part of the email sent by WordPress has no evidentiary basis.

Plaintiff’s claim related to the DMCA takedown incident is not entitled to a

presumption of truth, and Plaintiff lacked standing to file the notice in the first

place. Thus, the instant lawsuit should be dismissed pursuant to Md. Rule

2-322(b)(2).

PLAINTIFF HAS NOT PROPERLY PLEADED FALSE LIGHT INVASION OF PRIVACY

Under Maryland Law, the tort of false light invasion of privacy is defined as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

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  • (a) the false light in which the other person was placed would be

highly offensive to a reasonable person, and

  • (b) the actor had knowledge of or acted in reckless disregard as to

the falsity of the publicized matter and the false light in which

the other would be placed.

Bagwell v. Peninsula Regional Medical, 106 Md.App. 470, 513-514 (1995).

Plaintiff’s claims for false light fail for much the same reasons why his claims for

defamation fail. First, he has failed to properly allege damages, and there is no

such thing as “false light per se.” Second, he has failed to allege that Mr. Hoge “had

knowledge of or acted in reckless disregard as to the falsity of the publicized

matter”—the same legal standard as constitutional malice. In other words, for the

same reason he is not entitled to a presumption of damage under Shapiro, the

Plaintiff cannot make out a claim for false light. Therefore, any claims for false

light should be dismissed.

PLAINTIFF HAS NOT PROPERLY PLEADED MALICIOUS PROSECUTION

As noted in the MTD, Plaintiff does not actually allege malicious prosecution

in his Complaint. Additionally, Mr. Hoge notes that the alleged actions referenced

in paragraphs 31 through 43 were the subject of an amended counterclaim filed by

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Plaintiff against Mr. Hoge on 5 June, 2014, as a part of a copyright lawsuit.

  • 3 On 15

August, 2014, Plaintiff’s counterclaims were dismissed with prejudice. See Exhibit

  • B. Thus, even if Plaintiff were to amend his Complaint to plead malicious

prosecution, he would be barred by res judicata from making any claim based on

those actions.

As to any subsequent alleged acts, Plaintiff has not shown that Mr. Hoge (1)

intentionally instituted or caused to be instituted civil or criminal proceeding

against him (2) with no probable cause and that (3) was dismissed in his favor.

Exxon Corp. v. Kelly, 281 Md. 689, 693 (1978). He has failed to do so. For example,

the 2014 peace order petition was not dismissed in his favor. Also, the pending

charge for failure to comply with that order was filed by the Carroll County Sheriff’s

Office and not by Mr. Hoge. Since the charge is still pending, it has not been

dismissed in Plaintiff’s favor.

There is nothing in Plaintiff’s Opposition that explains how the Complaint

adequately pleads a case of malicious prosecution. Thus, the instant lawsuit should

be dismissed for failure to state a claim upon which relief can be granted pursuant

to Md. Rule 2-322(b)(2).

  • 3 Plaintiff’s counterclaims in the copyright lawsuit are available on PACER from the

    • U. S. District Court for the District Maryland. The case number is 14-CV-01683-

ELH and the docket number is ECF No. 8. The counterclaims begin at paragraph

46.

14

PLAINTIFF HAS NOT PROPERLY PLEADED INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

As noted in the MTD, Plaintiff has not alleged which particular intentional or

reckless act(s) by Mr. Hoge might have been the cause of any emotional distress

Plaintiff may have suffered. He has not properly alleged which of such acts were

extreme or outrageous. He hasn’t shown any actual connection between any act by

Mr. Hoge and Plaintiff’s supposed distress, and he has offered no evidence that his

alleged distress was severe. Harris v. Jones, 281 Md. 560, 566 (1977).

There is nothing in Plaintiff’s Opposition that explains how the Complaint

adequately pleads intentional infliction of emotional distress. Thus, the instant

lawsuit should be dismissed for failure to state a claim upon which relief can be

granted pursuant to Md. Rule 2-322(b)(2).

PLAINTIFF IS ENGAGED IN VEXATIOUS LITIGATION

Plaintiff has filed multiple unsuccessful lawsuits against Mr. Hoge over the

past year in retaliation for Mr. Hoge’s attempts to have peace orders or copyrights

enforced against Plaintiff.

On 20 May, 2014, Plaintiff filed a lawsuit styled Schmalfeld v. Hoge, et al. in

the U. S. District Court for the District of Maryland (Case No. 14-CV-01685-CCB).

15

The suit sought monetary damages and injunctive relief for claims of malicious

prosecution and abuse of process, defamation and libel, harassment and intentional

infliction of emotional distress, and punitive damages. Plaintiff withdrew his

lawsuit on 22 May, 2014, two days after it was filed.

On 3 June, 2014, Plaintiff filed counterclaims in a copyright lawsuit Mr. Hoge

had filed is U. S. District Court (Hoge v. Schmalfeldt, Case No. 14-CV-01683-ELH).

The counterclaims varied over time, but the amended counterclaims settled on

malicious prosecution and abuse of process, defamation and libel, harassment and

intentional infliction of emotional distress, and punitive damages. Plaintiff sought

$3,000,000 in damages and injunctive relief.

  • 4 On 14 August, 2014, Mr. Hoge and

Plaintiff reached a settlement which required that Plaintiff remove all infringing

materials from the Internet, books, or other media. On 15 August, 2014, the

counterclaims were dismissed with prejudice. Exhibit B.

On 2 February, 2015, Plaintiff filed a lawsuit in U. S. District Court (Case

No. 15-CV-00315-RDB) styled Schmalfeldt v. Johnson, et al. This suit sought

monetary damages and injunctive relief for claims of libel (per se), false light

invasion of privacy, abuse of process, malicious prosecution, obstruction of justice,

unlawful interference with business relationships, conspiracy, intentional infliction

of emotional distress, and punitive damages. The case was dismissed on

  • 4 The email referenced in the DMCA incident supra was related to this copyright case.

16

18 February, 2015, for lack of subject matter jurisdiction. The instant lawsuit is an

attempt by Plaintiff to carry this failed federal action forward.

Plaintiff is proceeding pro se in the instant suit, and it is clear from his

previous suits and counterclaims and his current filings that he lacks the requisite

legal knowledge to do so effectively. Further, there is evidence that Plaintiff suffers

from dementia. See Exhibit C at 2. Given his antipathy for the defendants in his

various civil actions, it is likely that he will continue to vex them with further

lawsuits. Plaintiff should not be allowed to proceed pro se in any matter before this

Court. The next time he wants to file a lawsuit, he should have to convince

someone, a lawyer or a judge, of the merits of his case before the case is filed.

The common law, the Court’s inherent powers, and Md. Rule 15-502(b) give

this Court the authority to issue a pre-filing order. See Riffin v. Cir. Ct. of Balt. Co.,

et al., 190 Md.App. 11, 985 A.2d 612, 622 (2010). The Court should do so and

prohibit Plaintiff from proceeding pro se in any matter without the pre-approval of a

Judge.

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CONCLUSION

Taken together, Plaintiff’s Complaint and Opposition to the MTD don’t add

up to a viable lawsuit. Even after one slogs through the extraneous material, it is

simply not possible to find proper allegations of all the elements of any tort.

WHEREFORE Mr. Hoge asks the Court

  • i. to DISMISS with prejudice the instant lawsuit for failure to state a

claim upon which relief can be granted pursuant to Md. Rule 2-322(b)(2),

ii.

to ORDER that the Clerk SHALL NOT accept for filing any paper filed by

Plaintiff acting pro se without prior clearance from a Judge of this Court,

and

iii.

for such other relief as the Court may deem just and proper.

Date: 30 March, 2015

C ONCLUSION Taken together, Plaintiff’s Complaint and Opposition to the MTD don’t add up to a

Respectfully submitted,

William John Joseph Hoge, pro se 20 Ridge Road Westminster, Maryland 21157 (410) 596-2854 himself@wjjhoge.com

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CERTIFICATE OF SERVICE

  • I certify that on the 30th day of March, 2015, I mailed a copy of this filing to William M. Schmalfeldt via First Class U. S. Mail.

C ERTIFICATE OF S ERVICE I certify that on the 30th day of March, 2015, I

William John Joseph Hoge

VERIFICATION

  • I certify under penalty of perjury that the foregoing information is true and

correct to the best of my knowledge and belief and that all exhibits attached are

true and correct copies of the originals except where redactions are noted.

C ERTIFICATE OF S ERVICE I certify that on the 30th day of March, 2015, I

William John Joseph Hoge

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Exhibit A

Obscene Image Posted on the Internet by Plaintiff

Extract from Oh. CUTIE Pie, Eh? Downloaded from http://www.patriot- ombudsman.com/2013/07/oh-cutie-pie-eh/index.html/ on 26 July, 2013.

Portions of the image have been blurred.

20

21
21

Exhibit B

Order Dismissing Plaintiff’s Counterclaims

22

Case 1:14-cv-01683-ELH

Document 50

Filed 08/15/14

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

WILLIAM JOHN JOSEPH HOGE Plaintiff

*

*

vs.

Civil Action No. ELH-14-01683

 

*

WILLIAM M. SCHMALFELDT Defendant

*

******

SETTLEMENT ORDER (LOCAL RULE 111)

This Court has been advised by the parties that the above action has been settled,

including all counterclaims, cross-claims and third-party claims, if any. Accordingly, pursuant to

Local Rule 111 it is ORDERED that:

This action is hereby dismissed and each party i s to bear its own costs unless otherwise

agreed, in which event the costs shall be adjusted between the parties in accordance with their

agreement. The entry of this Order is without prejudice to the right of a party to move for good

cause within 30 days to reopen this action if settlement is not consummated. If no party moves

to reopen, the dismissal shall be with prejudice.

Date: August 15, 2014

/s/

Ellen L. Hollander United States District Judge

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Exhibit C

Plaintiff’s Letter to U. S. District Judge Paul Grimm

24

Case 8:13-cv-03059-PWG Document 63 Filed 02/14/14 Page 1 of 3 February 12, 2014 The Hon. Judge
Case 8:13-cv-03059-PWG
Document 63
Filed 02/14/14
Page 1 of 3
February 12, 2014
The Hon. Judge Paul W. Grimm
US District Court for the District of Maryland
Greenbelt Division
6500 Cherrywood Lane
Greenbelt, MD 20770
RE: 8:13-cv-03059-PWG Kimberlin v. National Bloggers Club et al
Your Honor:
My name is Bill Schmalfeldt. Since 1977, I have been involved
in journalism in one
form or another. I am a member of the Society of Professional Journalists and the
National Society of Newspaper Columnists. I've written about everything from mass
catastrophes, on-the-scene reports on the deaths of celebrities, to light, feature
articles and satirical opinion. I am proud of my craft and have been well rewarded
and awarded. I was diagnosed with Parkinson's disease in 2000, and by 2011 my
disease had progressed to the point where I had to retire from a comfortable
position as a GS-13 Writer/Editor at the National Institutes of Health.
Although I am not a party in the above-referenced lawsuit, I must take exception to
what defendant WJJ Hoge III wrote about me in his "Defendant Hoge's Reply to
'Plaintiffs Response to Defendant Hoge's Two Latest Filings'" entered into the
docket on Feb. 10.
In his responses and replies, Mr. Kimberlin has taken care to leave my name out of
the fray when referring to "a reporter" who has been subjected to 366 charges of
harassment, electronic mail harassment, illegal access to a computer and violation of
a peace order filed against me by Defendant Hoge since February 2013, all of which
have been dropped by the Carroll County State's Attorney. Mr. Hoge, however, in his
eagerness to further smear and besmirch what is left of my reputation as a
journalist after a year of sustained attack by Mr. Hoge, defendant McCain, defendant
Akbar, defendant Walker and others, felt it necessary to identify me by name in his
recent filing. Moreso, he felt it was important to his case to identify me as an
"adjudicated harasser" who Mr. Hoge finally secured a peace order against on his
third try. He secured this peace order in Carroll County, although I live in Howard
County. After two district court judges turned him down, he got a circuit court judge
who admitted on the stand that he has no idea what "the Twitter" is or what it does
to agree that blocking a person on Twitter was as difficult as disabling Internet
functionality or changing a phone number. The same judge disregarded the opinion
of the state attorney general and the federal court in their US v. Cassidy ruling when
he granted Mr. Hoge's motion to extend the peace order another six months in
December.
25
Case 8:13-cv-03059-PWG Document 63 Filed 02/14/14 Page 2 of 3 He did not file in Howard
Case 8:13-cv-03059-PWG
Document 63
Filed 02/14/14
Page 2 of 3
He did not file in Howard County because of his efforts in April 2013 as leader of an
"Everybody
Blog About/Call the Howard County State's Attorney Day" right wing
blog meme. Defendant Hoge and Defendant Walker were "upset" that Howard
County refused to file new charges against Mr. Kimberlin for being in the courthouse
at the same time as Mr. Walker was seeking to have new
charges filed against me, in
which he was also unsuccessful. Hundreds of right wing bloggers tied up the office
phone of the Howard County State's Attorney as a result, which would explain why
he might be hesitant to bring charges against someone in Howard County.
He refers to me as an "associate" of Mr. Kimberlin. While it is true that Mr. Kimberlin
and I have become friends over the past year, we only met as a result of Mr. Hoge's
sustained campaign of harassment against me. Defendant Hoge describes me as a
"public relations mouthpiece" for Mr. Kimberlin when that could not be further from
the truth. In fact, at a recent court-approved mediation between myself and Mr.
Hoge, I again restated that I was happy to tell both sides of the story in this lawsuit,
but that I need the other side to respond with more than taunts, insults and/or
silence. Defendant Hoge claims that I have "often published factual claims made by
Plaintiff of the details of his court papers before they have been served on any
Defendant or have appeared on PACER."While I cannot answer to whether or not I
have published anything before papers were served on one defendant or another,
given the propensity for several of the defendants in this case to undertake
Herculean measures
to avoid being served, I can state to the best of my knowledge
that I have never published details of a filing before they appeared on PACER.
Defendant Hoge has been engaged in a systematic attack on me since I first began
investigating Defendant Akbar's misrepresentation of Defendant National Bloggers
Club's self-claimed SOl(c)3 status. As a person with Parkinson's disease, I react very
negatively to stress. This is a fact known to Defendant Hoge, one he uses to his
advantage. He understands that by continuing to smear me in the attempt to injure
the Plaintiff or damage his claim, that each subsequent charge makes my
Parkinson's disease worse. Parkinson's is a progressive neurological disorder. It
always gets worse. Nothing can make it improve. But it is proven that stress does, in
fact, irreversibly cause the downward progression of the disease to accelerate.
When I first became involved in this matter as a reporter, and when I was first
dragged into court by Mr. Hoge for the "crime" of reporting facts, I was largely able
to walk unassisted. Now I am wheelchair bound. There are other outward and not-
quite-so-visible signs of increased degeneration, including the onset of early
Parkinson's disease dementia.
I mention this, your honor, as Defendant Hoge has attempted to extort me by
threatening to include me in this lawsuit somehow if I "try his patience" any further,
knowing that such a legal adventure would further accelerate the damage done by
Parkinson's and hasten the approach of the imminent end.
26
Case 8:13-cv-03059-PWG Document 63 Filed 02/14/14 Page 3 of 3 Your honor needs to be aware
Case 8:13-cv-03059-PWG
Document 63
Filed 02/14/14
Page 3 of 3
Your honor needs to be aware of the nature of these people, the harm they are
willing to do. and the price in the suffering of others they are willing to pay to
destroy the Plaintiff in this case.
Respectfully,
William M. Schmalfeldt
6636
Washington Blvd. Lot 71
Elkridge, MD 21075
410-206-9637
27