Motion to Transfer:Dismiss

7/25/2019 Motion to Transfer:Dismiss

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IN THE CIRCUIT COURT FOR CARROLL COUNTY, MARYLAND

William John Joseph Hoge, III

Plaintiff pro se,

v.

Brett Kimberlin, et al.

Defendants

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Case No. 06-C-16-070789

DEFENDANT SCHMALFELDTS

MOTION TO TRANSFER PLAINTIFFSCASE OR DISMISS UNDER THEDOCTRINE OF FORUM NONCONVENIENS

______________________________________________________________________________

NOW COMES Defendant William M. Schmalfeldt Sr. of 3209 South Lake Drive,

Apartment 108, Saint Francis, WI, 53235 in the above-styled case for the sole purpose of filing

this motion for transfer/dismissal and without waiving any rights of jurisdiction, notice, process,

service of process, joinder, or venue. He hereby files this Motion to Transfer Plaintiffs Case or

Dismiss under the doctrine of forum non conveniens and states the following:

I. IT WOULD PRESENT DEFENDANT SCHMALFELDT WITH RISK TO HIS LIFE

AND/OR SAFETY TO BE FORCED TO TRAVEL FROM WISCONSIN TO MARYLAND

TO DEFEND AGAINST PLAINTIFFS VEXATIOUS ALLEGATIONS

1. As Schmalfeldt stated in an earlier motion, in the instant case, the proper venue

must lie in either Howard County, Maryland, or Milwaukee County, Wisconsin. Md. Cts. & Jud.

P. 6-201(a) states that a civil action shall be brought in a county where the defendant resides,

carries on a regular business, is employed, or habitually engages in a vocation[.] Neither Mr.

Schmalfeldt nor any of the other Defendantsreside in Carroll County, carry on regular business

in Carroll County, are employed in Carroll County or habitually carry out a vocation in Carroll

County. Plaintiff makes no allegation to the contrary, so 6-201(a) cannot be used to establish

venue in Carroll County.

Md. Cts. & Jud. P. 6-201(b) widens the possible scope for venue in a civil action,


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allowing, in the case of multiple defendants, that all may be sued in a county in which any one

of them could be sued, or in the county where the cause of action arose. (Emphasis added.)

Although Plaintiff may argue that Md. Cts. & Jud. P. 6-202(11) applies, i.e., Action(s) for

damages against a nonresident individual (may be tried) in any county in the state, the statutory

language is not clear as to whether a defendant subject to 6-202(11) would thus make all

defendants, including state residents, subject to trial in Carroll County, where none of the causes

of actions arose and in which none of the named defendants maintains a residence or a place of

business.

2. All that aside, Schmalfeldt claims that his 16-years of suffering from the

progressive neurological condition known as Parkinsons disease (Exhibit A)has made travel of

any distance, let alone the 836 miles between his residence in Saint Francis, Wisconsin, to the

courthouse in Westminster, Maryland, very difficult and very dangerous to Mr. Schmalfeldts

safety and well-being. Schmalfeldt does not have a drivers license, having voluntarily

relinquished it in 2009 when he realized the disease was causing him to press the gas pedal and

brake simultaneously at times. Air travel is difficult as Schmafeldt has surgically implanted deep

brain stimulation devices in his brain and beneath his collarbones, and therefore cannot go

through a metal detector. Train or bus travel would be very difficult. Train travel, while the most

comfortable, would require Schmalfeldt to retain a room in a sleeper car for both legs of the trip,

and that could add more than $1,200 to the cost of his round trip. A bus is impossible as it would

require Schmalfeldt to sit upright for at least a full day. At his residence in Saint Francis,

Schmalfeldt wear a pendant which he would activate to alert emergency medical assistance

should he injure himself in one of his frequent falls, caused by the lack of balance occasioned by

Parkinsons disease. During the trip to and from, and during the time in Maryland, Schmalfeldt


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would not have access to this potentially life-saving technology.

II. SHOULD PLAINTIFF CHOOSE,HE IS WELCOME TO REFILE HIS COMPLAINT IN

MILWAUKEE COUNTY CIRCUIT COURT.

3. This court has the authority to transfer Plaintiffs case in its entirety to Milwaukee

County Circuit Court in Wisconsin. This would make it much easier for Schmalfeldt to defend

against the allegations made by Plaintiff. The allegations Plaintiff makes against Defendant

Schmalfeldt arose while Schmalfeldt lived in Howard County. Further allegations arose when

Schmalfeldt lived in Milwaukee County. In fact, the Plaintiffs own allegations show that every

cause of action alleged against Defendant Schmalfeldt arose outside of Carroll County.

4. The Maryland Court of Appeals ruled in Lampros v. Gelb & Gelb, P.C., 153Md.

App 447, 454 (Md. Ct. Spec. App. 2003):

Defendants have the right not to be forced to defend in courts distant from

their home or place of business.

5. As there is a venue in the Milwaukee County Circuit Court where Plaintiffs

allegations could be heard and properly weighed against the evidence, there is no reason why this

court should not grant Schmalfeldts motion for Plaintiffs case to be heard under the long-

established doctrine of forum non conveniens.

III. TRANSFER OF THE CASE TO MILWAUKEE COUNTY,WISCONSIN,SATISFIES MD.

CTS.&JUD.P.6-201(A)AND MARYLAND RULE 2-327(C)

6. Md. Cts. & Jud. P. 6-201(a) states:

Subject to the provisions of 6-201 and 6-203 of this subtitle and unless

otherwise provided by law, a civil action shall be brought in the county

where the defendant resides, carries on a regular business, is employed, or

habitually engages in a vocation. . . . (emphasis added).


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7. Maryland Rule 2-327(c) states:

Convenience of the parties and witnesses. On motion of any party, the court

may transfer any action to any other circuit court where the action might

have been brought if the transfer is for the convenience of the parties andwitnesses and serves the interests of justice.

8. As Schmalfeldt resides in Milwaukee County, Wisconsin, and not Carroll County,

Maryland, Md. Cts. & Jud. P. 6-201(a) is satisfied by Schmalfeldts motion for transfer under

the doctrine of forum non conveniens.

9. As Schmalfeldt would have great physical difficulty and encounter hazard to life

or safety should he be required to travel to Carroll County, it would be to his convenience to

transfer the case to Milwaukee County, Wisconsin. As far as Schmalfeldt knows, neither Plaintiff

nor any of the other defendants have physical impediments to travel. Thus, Maryland Rule 2-327

is satisfied by this motion to transfer under the doctrine of forum non conveniens.

IV. SCHMALFELDTS MOTION TO TRANSFER/DISMISS UNDER THE DOCTRINE OF

FORUM NON CONVENIENS IS SUPPORTED BY MARYLAND PRECEDENT.

10. The Maryland Court of Appeals ruled in Odenton Dev. Co. v. Lamy, 320 Md. 33,

40 (1990).

A motion to transfer may be granted when the balance between these two

factors convenience of the parties and witnesses and the interests of justice

weigh strongly in favor of the moving party.

11. The Maryland Court of Special Appeals discusses the doctrine of forum non

conveniens in their ruling in Payton-Henderson v. Evans, 949 A.2d 654

(Md. Ct. Spec. App. 2008)

As Judge Sharer explained in Cobrand v. Adventist Healthcare, Inc.,149

Md.App. 431, 438, 816 A.2d 117 (2003):


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Even though venue may be properin one jurisdiction, a court has thediscretion to transfer actionsto another competent jurisdictionpursuant tothe forum non conveniens doctrine.

(Emphasis supplied).

Urquhart v. Simmons,339 Md. 1, 10, 660 A.2d 412 (1995), similarly described

a transfer based on that alternative rationale:

Maryland Rule 2-327(c) permits a trial court to transfer an action on thegrounds offorum non conveniensupon motion of any party when itappears that it would be more convenient for the parties and witnesses tohave the case heard in another appropriate venue and the interests ofjustice would be served. This rule permits an action to be transferred toanother appropriate venue even though a plaintiff's choice of venue is

proper.


The discretion to order a transfer stems from Maryland Rule 2-327(c), which

provides and has provided since 1984:

(c) Convenience of the parties and witnesses. On motion of anyparty, the court may transfer any actionto any other circuit court wherethe action might have been brought if the transfer is for the convenience ofthe parties and witnesses and serves the interests of justice.


There are, to be sure, limitations on the transfer. Niemeyer and Schuett,

Maryland Rules Commentary,explains at 215:

Obviously, if venue lies in only one circuit court and the action is filed inthat court, a transfer cannot be made under this section, even if anothercircuit court would be more convenient for all parties and witnesses. Thetransferee court must be a court where the action could have been filed inthe first instance.


InLennox v. Mull,89 Md.App. 555, 563, 598 A.2d 847 (1991), Chief Judge

Wilner traced the derivation of Rule 2-327(c):

Md. Rule 2-327(c) was derived from a Federal statute 28 U.S.C. 1404(a). SeeSource Note to Rule 2-327. Section 1404(a) provides that"[f]or the convenience of parties and witnesses, in the interest of justice, a


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district court may transfer any civil action to any other district or divisionwhere it might have been brought."

See also Odenton Development Co. v. Lamy,320 Md. 33, 40, 575 A.2d 1235(1990).

CONCLUSION

WHEREFORE, in the interests of the health and safety of Mr. Schmalfeldt, as well as in

the interest of justice and in service of the public interest, he asks the Court to apply the doctrine

of forum non conveniens and transfer Plaintiffs case to Milwaukee County Circuit Court for the

reasons defined above. In the alternative, Schmalfeldt prays that this court dismiss the

allegations against him raised by Plaintiff in his complaint.

Respectfully submitted this 25thday of June, 2016.

/s/William M. Schmalfeldt, Sr.William M. Schmalfeldt, Sr.3209 S. Lake Dr., Apt. 108Saint Francis, WI [email protected] Se Defendant

CERTIFICATE OF SERVICE

I hereby certify that a copy of this pleading has on this day been sent by electronic mail toWJJ Hoge III and other named defendants by agreement between the parties.

/s/William M. Schmalfeldt, Sr.

William M. Schmalfeldt, Sr.Pro Se Defendant


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Neurostimulators implanted in my chest.

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Motion to Transfer:Dismiss