IN THE CIRCUIT COURT FOR HOWARD COUNTY, MARYLAND WILLIAM M. SCHMALFELDT, SR )

Pro Se Plaintiff ) )

v. ) Case #13---C---15---102498 OT ) WILLIAM JOHN JOSEPH HOGE III )

Defendant )

PLAINTIFF SCHMALFELDTS OPPOSITION TO DEFENDANT HOGES MOTION TO DISMISS AND DEFENDANTS MOTION TO

DISMISS FOR IMPROPER VENUE COMES NOW Plaintiff William M. Schmalfeldt, Sr. and moves this court to deny Defendant William John Joseph Hoges twin motions to dismiss, one for failure to state a claim upon which relief can be granted, the other for improper venue.

HOGES MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Hoge states in his first motion that Plaintiffs claim of defamation is defective as his complaint contains only conclusory allegations. If Plaintiff had not offered evidence to substantiate each of his claims, those would be conclusory allegations. Hoge cannot make the substantive proof of Plaintiffs allegations vanish just by calling them

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conclusory. There is substantial proof of each allegation for each cause of action in the complaint. Evidence of Hoges relying on defamatory blog posts about Plaintiff to build readership is presented on pages 16-20 of the complaint. Paragraphs 51, 52, 54 of the complaint contain a defamatory quote posted by Hoge on his Hogewash.com blog regarding the plaintiff. Frankly, we are at a loss to explain how Hoge can state that plaintiff has failed to state a claim. Hoges remarks are not plaintiffs conclusions. They are quotes. Plaintiff claims they are defamation per se. Claim stated. Given the number of times Hoge has played fast and loose with court filings in various battles with plaintiff, Schmalfeldt hardly considers Hoge a reliable expert on what is or is not a well-pleaded complaint. Schmalfeldts track record of courtroom victories against Hoge should serve as notice that Hoges description of well-pleaded is not the yardstick by which the court should measure plaintiffs filings. Hoge argues that Schmalfeldt fails to demonstrate the defamatory statements Hoge made are false. In paragraph 51 of his complaint, plaintiff quotes Hoge as writing, Schmalfeldt has a long history of faking images and documents. That is an untrue statement proven by Hoges

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lack of substantiating evidence to follow the allegation on his blog. If Schmalfeldt has a long history of faking images and documents, Hoge should produce that history. Otherwise, he should take his medicine for making a false, defamatory statement. In paragraph 52, Hoge is again quoted from his Hogewash blog as saying, that the blogging platform WordPress restored material they mistakenly removed from his blog after I admitted having falsely identifying them as DMCA violations. In his exhibits accompanying his original complaint, Schmalfeldt includes documentation from WordPress as well as copies of his own e-mails demonstrating the falsity of Hoges statement. In paragraph 54 of his complaint, Schmalfeldt demonstrates another defamatory lie told by Hoge, claiming Schmalfeldt had threatened to file charges against Hoge unless Hoge revealed the name of anonymous blogger Paul Krendler. In his exhibits accompanying the original complaint, Schmalfeldt includes a copy of the alleged threat and a simple reading of the document will reveal no such threat. Therefore, Hoge lied, Schmalfeldt proved it. We do not take issue with Hoges description of material as obscene as that is a subjective term. Hoge may well think certain comic strips are obscene. That is his right. But to declare that anything

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produced by Schmalfeldt obscene, not in my opinion obscene, but a flat out declaration of materials I produced as being obscene, that is more than an opinion. That is a statement of what Hoge wishes to pass off as fact. In his motion, notable by its absence, is the word long in Hoges statement Moreover, Plaintiff does have a history of altering documents. In the quote cited in Plaintiffs original complaint, Hoge refers to a long history of altering documents. That is false and defamatory. Hoge produces one example, one in which I warned the reader in advance that it was not the actual document. Again, given Hoges track record in court against this plaintiff, well take a pass on his opinion of what is or is not well-pleaded. Again, Hoge asks the court to see something that does not exist in the invisible, non-existent extortionate threat in Exhibit F. Mr. Hoge complains that plaintiff did not print out the entire blog post of July 14, 2014 in his Exhibit G, which accompanies the original complaint. It was not necessary to print the entire blog post, as the part that plaintiff left off was a list of 70 URLs that WordPress removed by their mistake, not at plaintiffs request. The second page of Exhibit G shows the actual e-mail plaintiff sent to WordPress, something Hoge did not see fit to include in his blog post that day. Hoge indicts himself by

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asking the court to pay attention to the truncated e-mail he posted on his blog, rather than the entire e-mail Schmalfeldt sent to WordPress in which he specifically requested the removal of certain materials, not the items which were removed and replaced when Schmalfeldt notified WordPress of its mistake. Hoge alleges plaintiff has not sufficiently alleged malice, falsely claiming Schmalfeldt based his reasoning on two cases: Pittman v. Atlantic Realty, 127 Md. App. 255, 732, A. 2d.n 6 (1999) and Young v. Medatlantic Lab, 125 Md. App. 299, 725 A.2d. 574-575 (1990). For some reason Hoge fails to notice plaintiff also cited Hearst Corp. v. Hughes, 297 Md. 112, 125, 446 A.2d 486, 493 (1983); Gooch v. Maryland Mechanical Systems, 81 Md. App. 376, 393-94, 567 A.2d 954, 962 (1990); and Shapiro v. Massengill, 105 Md.. App. 743, 772, 661 A.2d 202, 216-17, cert. denied, 341 Md. 28, 668 A.2d 36 (1995). But Hoge did manage to mention two of the five authorities plaintiff cited. While Hoge seems fond of citing New York Times v. Sullivan 376 U.S. 254, 279-280 (1984) as the bar for establishing malice, forgetting for a moment that the case dealt with a public official suing a newspaper for libel; Schmalfeldt is not a public official and Hogewash is not a respected news organization; the case did set the standards for actual malice, which Schmalfeldt has more than met in his complaint. Actual

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malice is described in New York Times as a condition required to establish libel against public officials or public figures and is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." Reckless disregard does not encompass mere neglect in following professional standards of fact checking. The publisher must entertain actual doubt as to the statement's truth. Again, since Schmalfeldt is not a public figure or a public official, this definition does not apply. Malice, in a legal sense, may be inferred from the evidence and imputed to the defendant, depending on the nature of the case. The very words used to defame Schmalfeldt demonstrate a reckless disregard for the truthfulness of the statements made. Despite Hoges assertion that Intentional Infliction of Emotional Distress is not a cause of action in Maryland, once again we find him to be misinformed. The elements for intentional infliction of emotional distress are: 1. Conduct must be intentional or reckless; 2. Conduct must be extreme and outrageous; 3. There must be a causal connection between the wrongful conduct and the emotional distress. 4. Emotional distress must be severe.

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See Harris v. Jones 281 Md 560, 380 A.2d 611(1977). Even though he has denied plaintiff suffers from the condition, Hoge is aware that plaintiff has Stage IV Parkinsons disease. Stress exacerbates the progression of the disease, so the progressive disease gets worse faster than it would without the stress. Hoge is aware of this medical fact as Plaintiff has raised it in other venues. And now, as plaintiffs wife is in the end stages of her long battle with limited cutaneous systemic sclerosis (Scleroderma), the stress of having to deal with the constant legal harassment by Hoge, using the courts as his personal cudgel with which to inflict damage on plaintiff, causes additional stress. Whereas plaintiff has more than crossed the finish line in demonstrating actual claims upon which relief can and should be granted, the honorable court should deny Hoges motion to dismiss for failure to state a claim.

IMPROPER VENUE

Hoge has a second motion set for hearing, and that is a motion to dismiss for improper venue. Plaintiff respectfully asks the honorable court to dismiss this motion as well.

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Hoge cites CJ 6-201 as his rationale for dismissal. However, as Hoge is not the only defendant in this case, and CJ 6-201(b) reads, if there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a) of this section, 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. Could any one of the defendants be sued in Howard County? Yes, as defendant Eric P. Johnson lives in Paris, TN, and therefore fits the definition of CJ 6-202 (11) An action for damages against a non resident individual can be taken up in any county in the state. Hoge falsely states that plaintiff relies on CJ 6-103(b)(3). This statute is mentioned nowhere in the complaint. He, on the other hand, relies on Beyond Systems, Inc. v. Realtime Gaming Holding, LLC, 388 Md. 1, 878 A . 2d. 567, 582 (2004) as some sort of proof that Maryland has no personal jurisdiction over an out of state tortfeasor. But the cited case is one which has nothing whatsoever to do with whether an individual tortfeasor can be sued for damages incurred in another state. He also relies on Calder v. Jones 465 U.S. 783, 789-90 (1984) as proof that an action taken by a person in one state must be litigated in the state where the tort took place. But the actual decision, published a decade before the

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Internet went into widespread use, says exactly the opposite of what Hoge wants the court to believe it says. Jurisdiction over petitioners in California is proper because of their intentional conduct in Florida allegedly calculated to cause injury to respondent in California. Pp. 788-791 (b) Here, California is the focal point both of the allegedly libelous article and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the "effects" of their Florida conduct in California. Pp. 788-789. (c) Petitioners are not charged with mere untargeted negligence, but rather their intentional, and allegedly tortious, actions were expressly aimed at California. They wrote and edited an article that they [465 U.S. 783, 784] knew would have a potentially devastating impact upon respondent, and they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the magazine has its largest circulation. Under these circumstances, petitioners must "reasonably anticipate being haled into court there" to answer for the truth of the statements made in the article. Hoge also misapplies the ruling in Beyond Systems, Inc. v. Realtime Gaming Holding, LLC, 388 Md. 1, 878 A . 2d. 567, 582 (2004) as some sort of proof that Maryland has no personal jurisdiction over an out of state tortfeasor. But the cited case is one which has nothing whatsoever to do with whether an individual tortfeasor can be sued for damages incurred in another state. Defendant fails to mention on the same day Calder V. Jones was reported, the court held in Keeton v. Hustler Magazine, Inc., 465 US 770

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that jurisdiction would be found where the party injured by the libelous assertion was not a resident of the state where the lawsuit was brought. Where, as in this case, respondent Hustler Magazine, Inc., has continuously and deliberately exploited the New Hampshire market, it must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine. World-Wide Volkswagen Corp. v. Woodson, 444 U. S., at 297-298. And, since respondent can be charged with knowledge of the "single publication rule," it must anticipate that such a suit will seek nationwide damages. Respondent produces a national publication aimed at a nationwide audience. There is no unfairness in calling it to answer for the contents of that publication wherever a substantial number of copies are regularly sold and distributed. (Id.) Hoge argues that venue is improper because he lives in Carroll County. We remind the court of CJ 6-201(b) Multiple defendants. -- If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a) of this section, 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. If venue is proper for Defendant Johnson, then it is also proper for Defendant Hoge. Hoge argues that his websites terms of service states all disputes concerning the terms of use or content of his website are to be resolved in Carroll County. Hoge does not have the right to change state law by virtue

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of a Terms of Service on his blog. He uses Gilman v. Wheat, First Securities 345 Md. 361, 692 A. 2d. 454, 463 (1997) as his authority. If Hoge employed a click-wrap agreement whereby a user has to click a link stating I Agree before being allowed access to the website, he would have a much stronger case. The cited case dealt with a complaint based on a forum-selection clause in a contract governing a brokerage account. While courts have upheld so-called click-wrap agreements on website terms of service, they have also ruled that, as in any contract, a website terms of service must be agreed to by both parties, the webmaster and the viewer. Unlike a click-wrap agreement where a user must click an I agree link to get access to a website, Hoge relies on a Browsewrap sort of agreement. In its ruling in Specht v. Netscape, 306 F.3d 17 (2d Cir. 2002), the US Second Circuit Court of Appeals issued a ruling, authored by current Supreme Court Justice Sonia Sotomayor, which stated: Arbitration agreements are no exception to the requirement of manifestation of assent. This principle of knowing consent applies with particular force to provisions for arbitration. Windsor Mills, 101 Cal. Rptr. at 351. Clarity and conspicuousness of arbitration terms are important in securing informed assent. If a party wishes to bind in writing another to an agreement to arbitrate future disputes, such purpose should be accomplished in a way that each party to the arrangement will fully and clearly comprehend that the agreement to arbitrate exists and binds the parties thereto.

Commercial Factors Corp. v. Kurtzman Bros., 280 P.2d 146, 147-48 (Cal. Dist. Ct. App. 1955) (internal quotation marks omitted).

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One would be unaware that Hogewash even has a terms of service page unless one were, out of pure curiosity, to click the link at the top of the page which says The Fine Print. This does not seem to comply with the courts requirements of clarity and conspicuousness. Contrary to Hoges assertion to the contrary, Plaintiffs second cause of action in his complaint certainly does allege that Hoge engaged in malicious prosecution of a copyright infringement lawsuit against Plaintiff that ended with a mediated agreement favorable to plaintiff. While it is true that Civil Conspiracy is not a tort unto itself,: 'The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design. . . . In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.'' (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-78.)' (Id. at 511.) Again, contrary to Hoges assertion to the contrary, Hoge certainly is mentioned as a defendant in the Third Cause of action, Paragraph 81-82 and 87 CONCLUSION

WHEREFORE, Plaintiff Schmalfeldt asks this Court to deny both of Defendant Hoges motions to dismiss the complaint and asks that the case

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proceed after alternative service is effected on Defendant Johnson, who has so far refused service of summons. Dated this 13 th day of May, 2015 Respectfully Submitted William M. Schmalfeldt, Sr, 6636 Washington Blvd. Lot 71 Elkridge, MD 21075 (410) 206---9637 E---mail: bschmalfeldt@comcast.net

Certificate of Service I certify that on this 13 th day of May, 2015, I mailed a copy of this filing to WJJ Hoge III via First Class US Mail. William M. Schmalfeldt, Sr.