opp to vex litigant mot redacted

8/16/2019 Opp to Vex Litigant Mot Redacted

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William John Joseph Hoge,

Plaintiff ,

v.

Brett Kimberlin, et al.,

Defendants.

PLAINTIFF’S OPPOSITION TO DEFENDANTS BRETT AND TETYANA KIMBERLIN’S

MOTION TO FIND W ILLIAM HOGE A V EXATIOUS LITIGANT

Comes now William John Joseph Hoge and opposes Defendants Brett and

Tetyana Kimberlin’s Motion to Find William Hoge a Vexatious Litigant (Docket

Item 47). In opposition Mr. Hoge states as follows:

THE DEFENDANTS’ MOTION MISREPRESENTS MR. HOGE’S HISTORY OF

LITIGATION

The Kimberlins allege with no supporting evidence offered that

[o]ver the past three years, he [Mr. Hoge] has filed close to 400 legalactions against Defendants and those associated with them in three

different counties in Maryland, including Carroll, Howard and

Montgomery.

Docket Item 47, ¶ 1. They offer no evidence because none exists. The allegation is

false as is shown by an examination of the Maryland Judiciary Case Search online

database.

Exhibit A is a screen capture of the report generated by civil case search for

the name “William Hoge” over the range from 17 May, 2013, (three years and a day

before the date of Defendants’ motion) to 26 May, 2016. Mr. Hoge shows up as a

defendant in five cases (four filed by Brett Kimberlin, one filed by Defendant

IN THE

CIRCUIT COURT FOR C ARROLL COUNTY

M ARYLAND

Case No. 06-C-16-070789


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William Schmalfeldt) and as the plaintiff in the instant lawsuit. Mr. Hoge also filed

two peace order petitions against Schmalfeldt. One was granted in 2014. One was

denied in 2015. Of the cases shown in Exhibit A filed by Kimberlin:

380966V resulted in a directed verdict in Mr. Hoge’s favor.

403868V was dismissed with prejudice for res judicata.

0601SP012712015 was a peace order petition which was denied.

9148D was the appeal of that peace order petition and was denied.

Schmalfeldt’s lawsuit did not survive a motion to dismiss.

Exhibit B is a screen capture of the report generated by a civil case search on

PACER for the name “William Hoge” in the Fourth Circuit. Mr. Hoge shows up as a

defendant in four cases (two filed by Brett Kimberlin, two filed by Schmalfeldt) and

as plaintiff/counterclaim defendant in one filed against Schmalfeldt for copyright

infringement. Schmalfeldt withdrew his first suit against Mr. Hoge two days after

filing it. None of the rest of Kimberlin’s or Schmalfeldt’s federal lawsuits survived a

motion to dismiss. The copyright lawsuit filed by Mr. Hoge was settled via

alternate dispute resolution, and Schmalfeldt’s breach of that settlement is the

basis for Count XII of the instant lawsuit.

Exhibit C is a screen capture of the report generated by criminal case search

for the name “William Hoge” over the range from 17 May, 2013, to 26 May, 2016. It

shows six cases where Mr. Hoge sought to have a peace order enforced against

Defendant Schmalfeldt. Those six cases included over 350 counts for failure to obey

a peace order as well as several other counts for harassment or misuse of electronic

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communication. The unwanted contacts by Schmalfeldt that were the basis of those

charges were also one of bases for this Court’s extension of the underlying peace

order. Hoge v. Schmalfeldt, Case No. 06-C-13-063359 (Md. Cir.Ct. Carroll Co.

2013). An additional charge from 2015 against Schmalfeldt for failure to obey a

second peace order appears to have been expunged. Of course, those seven criminal

cases were State v. Schmalfeldt. While Mr. Hoge was the victim, he was not a party

and did not file any actions.

Mr. Hoge also appears as a criminal defendant in one case. That is the case

underlying Count XI in the Complaint. The false charge underlying Count I does

not appear in the online record.

Clearly, Mr. Hoge did not file “close to 400” legal actions during the past

three years. In fact, the total number, including the instant lawsuit, is four and not

four hundred. The first three were filed against Defendant Schmalfeldt, two peace

order petitions and one copyright infringement lawsuit. On the other hand, Mr.

Hoge has been on the receiving end of four lawsuits and a peace order petition from

Brett Kimberlin and three lawsuits from Schmalfeldt. Mr. Hoge won all of those

lawsuits, and the peace order sought against him was denied. Moreover, Mr. Hoge

has been falsely charged with crimes twice because of perjured statements made by

Defendants Brett and Tetyana Kimberlin.

Apparently, Mr. Hoge has vexed Brett Kimberlin and William Schmalfeldt by

successfully defending himself from frivolous and malicious lawsuits and from false

criminal charges. In particular, Defendant Schmalfeldt appears to have been sorely

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vexed by Mr. Hoge’s seeking to have peace orders enforced. However, the

disappointment of the Kimberlins and Schmalfeldt at the failure of their multi-year

campaign of lawfare waged against Mr. Hoge does not make Mr. Hoge a vexatious

litigant.

The Defendants also make unsubstantiated, evidence-free allegations

concerning fraud and forum shopping. Motion, ¶ 2. Such conclusory allegations

should be ignored.

Again in paragraph 3, the Defendants offer no evidence in support of their

allegation that Mr. Hoge is a sexual predator. Furthermore, Brett Kimberlin is

estopped by the denial of the peace order sought in 2015, Kimberlin v. Hoge, Case

No. 9148D (Md. Cir.Ct. Mont. Co. 2015), and the dismissal with prejudice of

Kimberlin v. National Bloggers Club, et al. (II), Case No. 403868V (Md. Cir.Ct.

Mont. Co. 2016) from alleging that Mr. Hoge has engaged in stalking or harassment

of him or his family or that he has posted any “sick or twisted” blog articles about

them on the Internet. The allegation in paragraph 4 that Mr. Hoge is an “obsessed

stalker” is similarly barred. In any event, those allegations are also purely

conclusory and should not be considered. Furthermore, even if the Defendants’ ad

hominem attacks on Mr. Hoge were true, they would neither prove nor disprove

whether he has engaged in vexatious litigation.

The Defendants have misrepresented the record of cases involving Mr. Hoge.

Given that they have no facts to support their motion to find Mr. Hoge vexatious,

the Court should deny the motion.

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THE MOTION H AS NEVER BEEN SERVED ON MR. HOGE

Mr. Hoge has never been served with a copy of Docket Item 47. He is aware

of its contents only because he bought a copy from the Clerk of the Court.

The Certificate of Service accompanying the Motion states “I certify that I

mailed a copy of this motion on [sic] Plaintiff this 9th day of May, 2016,” and it is

signed by “Brett Kimberlin.” The Court’s docket shows that the motion was both

filed and entered on “05/18/2016.” Mail rarely takes more than two or three days to

move from Bethesda to Westminster, so if it were true that Kimberlin mailed a copy

of the Motion to Mr. Hoge on the 9th, he should have received it before the Court

received its copy. Yet, Mr. Hoge had not received a copy as of 2 June, 2016.

Given that both the U. S. District Court for the District of Maryland and the1

Circuit Court for Montgomery County have had to admonish Kimberlin for failure2

to serve court papers on adverse parties, it is unlikely that this failure to serve Mr.

Hoge is a mistake made by a pro se litigant. It is most certainly a knowing violation

For example:1

All subsequent motions that fail to properly serve all parties in this

matter or are improperly signed, will be struck from the Court’s

docket. See ECF No. 133 at 2 (“This Court intends to follow Judge

Grimm’s CMO as written. To the extent a party files a motion (or

other document) that is noncompliant with the CMO, it will be

struck from the Court’s docket.”).

Kimberlin v. Frey, Letter Order, ECF No. 313 (D.Md. Oct. 15, 2015) at 4, 5.

Walker v. Kimberlin, et al., Case No. 398855V, Order, Docket Item 117 (Md.2

Cir.Ct. Mont. Co. Mar. 21, 2016). This order requires that parties in the matter

serve one another by Certified Mail, that the Return Receipt be file with the court,

and that all future filing not comply with the order be stricken.

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of the requirement to serve court papers on all parties who have appeared in a

lawsuit. As such, this failure is itself a sufficient reason to deny the Motion.

THE MOTION IS NOT PROPERLY SIGNED

Rule 1-311 requires that every pleading or paper filed contain the signer’s

address, telephone number, and email address. Neither Brett nor Tetyana

Kimberlin have provided that information with their signature blocks on the

Motion. Indeed, they have not provided that information on any paper they have

filed with this Court in the instant lawsuit.

Given that this error has been pointed out several times and that the

Kimberlins have taken not steps to correct the error but have continued to submit

filings without the information required by Rule 1-311, the Court should consider

the violation willful and as sufficient reason to deny the Motion.

THE MOTION CONTAINS IMPROPER, IMMATERIAL, IMPERTINENT, AND

SCANDALOUS M ATERIAL

The ad hominem attacks on Mr. Hoge referring to him as a “serial

harasser” (Motion, title), as a “sexual predator” (id., title, ¶

3 ), as “obsessed” (id.,

¶¶ 1, 4), as a “stalker” (id., ¶ 4), and as a “twisted and depraved sadist” (id., ¶ 4) are

made with no evidentiary support. As such, these epithets are clearly improper.

Moreover, they are immaterial. Mr. Hoge might be all those things and still not be

vexatious. Thus, there is no reason for Defendants to bring such impertinent and

scandalous allegations in the instant motion. Rule 2-322(e) allows for a motion

containing such material to be stricken. This Court’s inherent power to maintain

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control of its docket and the dignity of its proceedings allow it to deny such a

motion. It should exercise its authority and deny the instant Motion.

CONCLUSION

WHEREFORE, Mr. Hoge asks the Court to DENY Defendants Brett and Tetyana

Kimberlin’s Motion to Find William Hoge a Vexatious Litigant (Docket Item 47) and

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

Date: 3 June, 2016 Respectfully submitted,

William John Joseph Hoge, pro se 20 Ridge Road

Westminster, Maryland 21157

(410) 596-2854

[email protected]

CERTIFICATE OF SERVICE

I certify that on the 3rd day of June, 2016, I served copies of the foregoing on

the following persons:

William M. Schmalfeldt by First Class U. S. Mail to 3209 S. Lake Drive, Apt. 108,

St. Francis, Wisconsin 53235

William Ferguson by First Class U. S. Mail to 10808 Schroeder Road, Live Oak,

California 95953

Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,

Maryland 20817 (last known address)

Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,

Maryland 20817 (last know address)

William John Joseph Hoge

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A FFIDAVIT

I, William John Joseph Hoge, solemnly affirm under the penalties of perjury

that the contents of the foregoing paper are true to the best of my knowledge,

information, and belief.

Date: 3 June, 2016

William John Joseph Hoge

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Exhibit A


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Exhibit B


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Exhibit C


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William John Joseph Hoge,

Plaintiff ,

v.

Brett Kimberlin, et al.,

Defendants.

PROPOSED ORDER

Upon consideration of Plaintiff’s Opposition to Defendants Brett and Tetyana

Kimberlin’s Motion to Find William Hoge a Vexatious Litigant and any reply

thereto, this ________ day of _______________, 2016, said motion (Docket Item 47) is

hereby DENIED.

It is so ORDERED.

_______________________________________

Circuit Court Judge

IN THE

CIRCUIT COURT FOR C ARROLL COUNTY

M ARYLAND

Case No. 06-C-16-070789

opp to vex litigant mot redacted

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