William John Joseph Hoge,

Plaintiff,
v.
Brett Kimberlin, et al.,
Defendants.

IN THE

CIRCUIT COURT FOR CARROLL COUNTY

MARYLAND
Case No. 06-C-16-070789

PLAINTIFFS REPLY TO DEFENDANT SCHMALFELDTS OPPOSITION TO THE CROSS

MOTION FOR PARTIAL SUMMARY JUDGEMENT
COMES NOW William John Joseph Hoge and replies to Defendant
Schmalfeldts Opposition to Plaintiffs Cross Motion for Partial Summary
Judgement and Request for a Hearing (Docket Item 82/1). In reply Mr. Hoge states
as follows:
I. THERE IS NO DISPUTE OVER ANY MATERIAL FACT RELATED TO COUNT XII
There is no dispute between Mr. Hoge and Schmalfeldt over either the
existence of the Settlement Agreement or its text. Indeed, the copy Mr. Hoge has
submitted is one Schmalfeldt had posted on the Internet. Schmalfeldt contends
that the Agreement is not an enforceable contract because it lacks consideration.
The Court can see from the face of the Agreement that Schmalfeldt is simply wrong.
Further, his bizarre assertion that a contract must contain a binding
arbitration clause has no basis in either the Maryland Uniform Arbitration Act
(Cts. & Jud. P. 3-201 et seq.) or case law.

There is no dispute between Mr. Hoge and Schmalfeldt concerning whether

Shmalfeldt published Mr. Hoges works without prior written permission.
Schmalfeldt admits that he did so in his Answer. Docket Item 1/4 at 5.
If there ever were an open-and-shut case, Count XII is it. The facts are
alleged by the Plaintiff and admitted to by the Defendant. The Defendant has
offered no lawful defense. Thus, the Court should grant summary judgment with
respect to Count XII in Mr. Hoges favor.
II. MR. HOGE SHOULD BE AWARDED DAMAGES EQUIVALENT TO STATUTORY
DAMAGES FOR COPYRIGHT INFRINGEMENT
Mr. Hoge alleges that in the process of breaching the Settlement Agreement
Schmalfeldt willfully infringed Mr. Hoges copyrights. There is clear evidence that
Schmalfeldt infringed Mr. Hoges copyrights intentionally, purposefully, and
stubbornly. Indeed, Schmalfeldts infringement in violation of the Settlement
Agreement has continued, occurring as recently as 5 November, 2016.1
Therefore, Mr. Hoges seeks damages equivalent to the statutory damages for
willful infringement that could be awarded pursuant to 17 U.S.C. 504 in a federal
copyright action for each willful infringement of a registered copyright. Six of the
applications for registration have been granted to date, therefore Mr. Hoge seeks
monetary damages of in excess of $75,000.

See Exhibits 1 and 2 of the Affidavit attached as Exhibit A.

2

III. THE COURT SHOULD GRANT MR. HOGE INJUNCTIVE RELIEF

As noted above, Schmalfeldt has continued to violate the terms of the
Settlement Agreement by publishing Mr. Hoges copyrighted works without prior
written permission. It is clear that Schmalfeldt has no intention of honoring the
Settlement Agreement unless the Court requires him to do so. Therefore, the Court
should enjoin Schmalfeldt for any further republication of Mr. Hoges works.
CONCLUSION
WHEREFORE, Mr. Hoge asks the Court to grant partial summary judgment
with respect to Count XII in his favor, to conduct a hearing to determine the
amount of damages to be paid by Schmalfeldt, to enjoin Schmalfeldt from any
further republication or use of Mr. Hoges copyrighted works, and to grant such
other relief as the Court may find just and proper.
Date: 14 November, 2016

Respectfully submitted,

William John Joseph Hoge, pro se

20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com

CERTIFICATE OF SERVICE
I certify that on the 14th day of November, 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
Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817
Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817

William John Joseph Hoge

AFFIDAVIT
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: 14 November, 2016
William John Joseph Hoge

Exhibit A

William John Joseph Hoge,

Plaintiff,
v.

IN THE

CIRCUIT COURT FOR CARROLL COUNTY

MARYLAND
Case No. 06-C-16-070789

Brett Kimberlin, et al.,

Defendants.

AFFIDAVIT OF WILLIAM HOGE

I, William John Joseph Hoge, depose and say:
1.

I am over eighteen (18) years of age, have personal knowledge of the

facts contained herein, and am competent to be a witness.

2.

At 12:02 am ET on 5 November, 2016, I published the blog post shown

in Exhibit 1 on my blog Hogewash!.

3.

Later that same day, I found the tweet (Twitter message) shown in

Exhibit 2 on William Schmalfeldts @FatManPodcast Twitter account. The tweet is

timestamped 12:28 am ET, 5 November, 2016. I did not grant permission for
Schmalfeldts use of my copyrighted blog post.
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: 12 November, 2016
William John Joseph Hoge
20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com

Exhibit 1
5 November, 2016, blog post from Hogewash!

Exhibit 2
Tweet from @FatManPodcast downloaded on 5 November, 2016, from http://
twitter.com/status/794758238520705024/.