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

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DEFENDANT SCHMALFELDTS ANSWER TO AND MOTION TO DISMISS

PLAINTIFF HOGES COMPLAINT FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED
NOW COMES Defendant William M. Schmalfeldt, Sr., of 3209 S. Lake Drive, Apartment 108, Saint
Francis, Wisconsin to ANSWER Plaintiffs complaint as follows:
1-3.

Admit.

4.

Admit in part, deny in part, Matt Osborne was editor the the Internet website Breitbart

Unmasked. Deny knowledge or information sufficient to form a belief on the rest.

5.

Admit in part. Denies fleeing State of Maryland, denies maintaining an address or property in

Howard County, MD.

6.

Admit.

7.

Deny.

8.

Deny.

9-14.

Deny knowledge or information sufficient to form a belief.

JURISDICTION

15.

Deny.

16.

Deny.
THE CIVIL CONSPIRACY

17.

Deny.

18.

Deny knowledge or information sufficient to form a belief.

19.

Deny knowledge or information sufficient to form a belief.

20.

Deny knowledge or information sufficient to form a belief.

21.

Deny knowledge or information sufficient to form a belief.

22.

Deny knowledge or information sufficient to form a belief.

23.

Deny knowledge or information sufficient to form a belief.

24.

Deny.

25.

Deny.

26.

Admit publishing the article. Deny the remainder of the paragraph.

27.

Deny

COUNT I ACTS RELATED TO ALLEGED MALICIOUS PROSECUTION OF JULY 30, 2013

28.

Aver.

29.

Deny knowledge or information sufficient to form a belief.

30.

Deny.

31.

Deny.

32.

Deny.

33.

Deny knowledge or information sufficient to form a belief.

COUNT II ACTS RELATED TO DEFAMATION BY BREITBART UNMASKED ON MARCH 4,

2015

34.

Aver.

35.

Admit while objecting to the word falsely. Deny last two sentences.

36.

Deny.

37.

Deny.

38.

Deny

COUNT III ACTS RELATED TO A DEFAMATORY EMAIL OF MARCH 4, 2015

39.

Aver.

40.

Deny knowledge or information sufficient to form a belief.

41.

Deny knowledge or information sufficient to form a belief.

COUNT IV ADDITIONAL DEFEAMATION RELATED TO THE MARCH 4, 2105 BREITBART

UNMASKED ARTICLE
42.

Aver.

43.

Admit the comment, deny Plaintiffs characterization of it.

44.

Deny.

COUNT V ADDITIONAL DEFAMATION RELATED TO THE MARCH 4, 2015 BREITBART

UNMASKED ARTICLE
45.

Aver.

46.

Deny knowledge or information sufficient to form a belief.

47.

Deny.

COUNT VI ACTIONS RELATED TO A DEFAMATORU EMAIL OF MARCH 9, 2015

48.

Aver.

49.

Deny knowledge or information sufficient to form a belief.

50.

Deny knowledge or information sufficient to form a belief.

COUNT VII ACTS RELATED TO DEFAMATION BY BREITBART UNMASKED, MARCH 9,

2015

51.

Aver.

52.

Deny knowledge or information sufficient to form a belief.

53.

Dewy.

COUNT VIII ACTS RELATED TO DEFAMATION BY BREITBARTUNMASKED ON

MARCH 13, 2015
54.

Aver.

55.

Deny knowledge or information sufficient to form a belief.

56.

Deny knowledge or information sufficient to form a belief.

57.

Deny knowledge or information sufficient to form a belief.

58.

Deny knowledge or information sufficient to form a belief.

COUNT IX -- ACTS RELATING TO DEFAMATORY STATEMENTS MADE TO TWITTER

59.

Aver.

60.

Deny.

61.

Deny.

62.

Deny.

COUNT X ACTS RELATED TO DEFAMATION BY BREITBART UNMASKED ON

MAY 18, 2015
63.

Aver.

64.

Deny knowledge or information sufficient to form a belief.

65.

Deny knowledge or information sufficient to form a belief.

COUNT XI ACTS RELATED TO THE MALICIOUS PROSECUTION OF MAY 18, 2015

66.

Aver.

67.

Deny knowledge or information sufficient to form a belief.

68.

Deny knowledge or information sufficient to form a belief.

69.

Deny knowledge or information sufficient to form a belief.

70.

Deny knowledge or information sufficient to form a belief.

71.

Deny knowledge or information sufficient to form a belief.

COUNT XII ACTS RELATED TO BREACH OF CONTRACT

72.

Aver.

73.

Admit most, although Deny the agreement is a contract as it lacks the basic elements of a

contract: Offer, Acceptance, Consideration.

74.

Admit. Deny that reprints were violations of the settlement agreement.

75.

Admit publication of book. Deny infringement.

76.

Admit.

77.

Admit.

78.

Admit.

79.

Admit.

80.

Admit.

81.

Admit.

82.

Admit.

83.

Admit.

84.

Admit.

85.

Admit.

86.

Deny.
PUNITIVE DAMAGES ARE JUSTIFIED IN THE INSTANT LAWSUIT

87.

Deny.

WHEREFORE, Defendant Schmalfeldt respectfully requests that this Court:

i.

Enter judgment on Defendant Schmalfeldts behalf on each of the counts in Hoges complaint,

ii.

Dismiss Plaintiffs complaint with prejudice,

iii.

Award Defendant Schmalfeldt his costs.

iv.

Grant Defendant Schmalfeldt such other and further relief as the court may deem appropriate.

MOTION TO DISMISS PLAINTIFFS COMPLAINT FOR FAILURE TO STATE A CLAIM

UNDER WHICH RELIEF CAN BE GRANTED
Defendant Schmalfeldt hereby files this motion to dismiss Plaintiffs complaint for failure to state a claim
under relief can be granted.
1.

Plaintiff has not stated a claim against Defendant Schmalfeldt for which relief can be granted.

Therefore, the Court should dismiss his complaint against this Defendant in accordance with Rule 2-322(c).
2.

At this Courts Motions Hearing on Sept. 27, 2016, the Court ruled that the plaintiff had not plead

a proper complaint for conspiracy. As such, all allegations of conspiracy made against this Defendant should be
dismissed.
3.

In 43 of Count IV, Plaintiff alleges this Defendant defamed him by posting a comment on the

online publication Breitbart Unmasked in regards to a March 4, 2015 article titled William Hoge Stalking a
Teenager for His Conspiracy Theory. The complaint contains a single sentence from the comment, in which this
Defendant wrote, addressed to then-editor Matt Osborne, Matt, that was an appropriately brutal and true
depiction of events. He indicates in his complaint that this single sentence endorses the entire article as truthful
and is a restatement of the alleged defamatory remarks contained in the article. He further alleges the comment
amounts to an allegation that the Plaintiff committed crimes, i.e., stalking and perjury. He goes on to say the
comment implies that this defendant has independent and undisclosed knowledge of facts not in the article. He
does not say how he comes to this conclusion, stating that the facts demonstrate the statements in the article were
false, that Schmalfeldt knew they were false, or that he acted with a reckless disregard for the truth, and that by
endorsing them, Schmalfeldt acted with malice. This Defendant notes that the Plaintiff never mentions which
facts demonstrate all these things, knowing as this Defendant does that Mr. Hoge seems to believe that his

calling something a fact somehow imbues it with an official imprimatur that can no longer be questioned. Also,
Mr. Hoge does not claim the comment as defamation per se, and therefore is tasked with the burden of proving
how this single sentence from a comment on a blog damaged him in any way whatsoever. Without damages,
there can be no defamation per quod and thus, no defamation. This is not a claim under which relief can be
granted, and thus, must be dismissed.
4.

The Settlement Agreement referenced by the Plaintiff in 73 of his complaint, Plaintiff calls the

Settlement Agreement a contract enforceable under the Laws of the State of Maryland. However, the agreement
lacks one of the basic elements of a contract. The WEX Legal Dictionary defines a contract as a promise the law
will enforce. (Emphasis added.) Maryland Contract Law is codified in Title 2 of Maryland Commercial Law
2-206, which defines the first two essential elements of a contract: Offer and Acceptance. Without the third
essential element, Consideration, there cannot be a valid contract. In the Settlement Agreement of August 14,
2014, both Plaintiff and this Defendant agreed to the Offer: the dropping of Plaintiffs copyright infringement
lawsuit; Acceptance was established when both parties signed the Agreement. However, the essential element of
Consideration is entirely missing from this agreement. Under contract law, Consideration requires that each party
must have given and received something of value. Agreeing to drop a lawsuit that the judge told Plaintiff in his
motion for summary judgment that he was probably going to lose cannot be considered something of value. This
defendant agreed to remove any remaining material that could legally be considered to be infringing Plaintiffs
copyright from Defendants blog involved the removal of no material as when the agreement was executed,
Defendants blog was already free of anything the Plaintiff deemed infringing. Again, no Consideration changed
hands.
5.

Even if one were to turn over a rock and discover a shred of Consideration in this agreement,

Plaintiff still stands to gain absolutely nothing from pursuing a Breach of Contract claim. Maryland Law does not
allow for punitive damages in breach of contract cases. Plaintiff would be required to show how the value of his

blog, such as it is, was negatively impacted by the alleged infringement and that is the amount he would be
allowed to recover. Plaintiff makes no such claim of value of his short and pithy blog posts, many of which are
more than 50 percent material originated by this Defendant, copied by Plaintiff off Twitter.
6.

Since there cannot be a legally enforceable contract due to the lack of consideration, Plaintiff asks

this court to provide relief that cannot be granted.

7.

Even if there were consideration found in this agreement, Plaintiff stands to gain nothing from

pursuing the allegation as there would certainly be no monetary value to the brief paragraphs Plaintiff alleges were
stolen from his blog. As Maryland law does not allow for punitive damages in Breach of Contract cases,
Plaintiff still stands to gain nothing from pursuing this claim. Thus, Plaintiff is asking this Court for relief that
cannot be granted.
PRAYER FOR RELIEF
WHEREFORE, this Defendant asks the Court to dismiss all allegations against this Defendant with
prejudice on the basis of Plaintiff s Failure to State a Claim for Which Relief Can Be Granted, and for any and all
other relief as this Court may deem just and proper.
Date:

September 28, 2016

Respectfully submitted,
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 28th day of September, 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.

William M. Schmalfeldt, Sr.