Reply2Opp Venue

8/9/2019 Reply2Opp Venue

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William M. Schmalfeldt,

Plaintiff ,

v.

William John Joseph Hoge, et al.,

Defendants.

DEFENDANT HOGE’S REPLY TO “PLAINTIFF’S OPPOSITION TO DEFENDANT HOGE’S

MOTION TO DISMISS AND DEFENDANT’S MOTION TO DISMISS FOR IMPROPER

V ENUE” (DKT. NOS. 8/3 AND 10/1) AND MOTION TO P ARTIALLY STRIKE S AME

Comes now Defendant William Hoge and replies to Plaintiff’s Opposition

(Dkt. No. 10/1) and moves this Court to partially strike same as untimely filed. In

reply and in support of his motion Mr. Hoge states as follow:

I. MUCH OF PLAINTIFF’S FILING SHOULD BE STRICKEN AS UNTIMELY

By way of background, Defendant Hoge filed his Motion to Dismiss for failure

to state a claim upon which relief can be granted (Dkt. No. 8/0, “MTD”) on 23

March, 2015. Plaintiff filed a timely Opposition (Dkt. No. 8/1, “Opp”) on 31 March,

2015, and Mr. Hoge filed a Reply (Dkt. No. 8/2) on 31 March, 2015. The motion has

IN THE

CIRCUIT COURT FOR HOWARD COUNTY M ARYLAND

Case No. 13-C-15-102498 OT


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been fully briefed, and the Court has scheduled a hearing on the motion for 3 June,

2015.

On 11 May, 2015, Mr. Hoge filed a second Motion to Dismiss (Dkt. No. 10/0,

“MTD-Venue”) for improper venue. Plaintiff filed a single document (“Opp-Venue”)

which contained two sections. The first section (under the heading “Hoge’s Motion

to Dismiss for Failure to State a Claim”) was a surreply to Mr. Hoge’s 31 March

Reply. The second section was a opposition to Mr. Hoge’s MTD-Venue. Plaintiff’s

filing was docketed as an Opposition to MTD (Dkt. No. 8/3) and as an Opposition to

MTD-Venue (Dkt. No. 10/1). It was filed on 15 May, 2015, or 45 days after Mr.

Hoge’s Reply to Opp1 (Dkt. No. 8/2), and even if the Court were to treat the first

section of the filing as a surreply, that part is untimely and should be stricken or, at

least, disregarded.

II. PLAINTIFF H AS NOT E XPLAINED W HY V ENUE IS PROPER IN HOWARD COUNTY

a. Plaintiff Has Not Properly Pleaded the Court’s Jurisdiction Over the

Out-of-State Defendants

Plaintiff attempts to show that he has grounds to use the Maryland Long

Arm Statute to bring his case against the Defendants other than Mr. Hoge. He

relies on federal case law that defines the limits of due process in such cases.

However, Maryland case law regarding the reach of our Long Arm Statute is more

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restricted, and Plaintiff has simply failed to offer a single non-conclusory allegation

against the out-of-state Defendants that would allow the Court to apply the Long

Arm Statute in this case.

Plaintiff does not allege that any Defendant other than Mr. Hoge

(1) [t]ransacts any business or performs any character of work or

service in the State;

(2) [c]ontracts to supply goods, food, services, or manufactured

products in the State;

…

(4) [c]ause[d] tortious injury in the State or outside of the State by

an act or omission outside the State if he regularly does or solicits

business, engages in any other persistent course of conduct in the

State or derives substantial revenue from goods, food, services, or

manufactured products used or consumed in the State;

(5) [h]as an interest in, uses, or possesses real property in the State;

or

(6) [c]ontracts to insure or act as surety for, or on, any person,

property, risk, contract, obligation, or agreement located, executed,

or to be performed within the State at the time the contract is

made, unless the parties otherwise provide in writing.

Cts. & Jud. P. § 6-103(b). (Plaintiff does not allege that item (6) above applies to

any Defendant.) Thus, if Plaintiff has a case under the Long Arm Statute, he must

allege that the out-of-state Defendants “[c]ause[d] tortious injury in the State by an

act or omission in the State[.]” § 6-103(b)(3), emphasis added. Plaintiff has not

alleged that any Defendant other than Mr. Hoge made any statements while in

Maryland. Further, he has also failed to properly allege acts necessary to establish

the minimum contacts by the other Defendants necessary to trigger the Long Arm

Statute.

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The Supreme Court held in Calder v. Jones that due process requires that

minimum contacts can only be established for the purposes of finding specific

jurisdiction where a defendant, although acting outside of the forum state,

“intentionally directed his tortious conduct toward the forum state, knowing that

the conduct would cause harm to a forum resident.” Allcarrier Worldwide Servs.,

Inc. v. United Network Equip. Dealer Ass’n, 812 F.Supp. 2d 676, 681 (D.Md. 2011)

(citing Calder v. Jones, 465 U.S. 783, 789-790 (1984)).

The Supreme Court emphasized that a finding of specific jurisdiction can not

based on the mere foreseeability of a defamatory article’s circulation and effects in

the state. Such a finding must be because of “intentional, and allegedly tortious,

actions were expressly aimed” at the state. Calder, 465 U.S. at 789. Plaintiff

argues that federal case law such as Keeton v. Hustler Magazine, Inc., 465 U.S. 770

(1984), allows § 6-103(b)(3) to be applied in this lawsuit. That case found that the

magazine could be sued in a state based on sales of the magazine in that state.

Certainly, offering a magazine for sale in a state could be construed as being

“aimed” at that state, but that does not fit the facts of the instant lawsuit. Plaintiff

has not alleged that any of the statement made by an out-of-state Defendant was

“expressly aimed” at Maryland, but even if he had, that would not be sufficient

under Maryland case law, which is more strict than the federal standard, to

establish special jurisdiction.

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Addressing a letter to Maryland address, putting a stamp on the envelope,

and entrusting it to the Postal Service for delivery can also be reasonably taken as

“expressly aiming” a communication at this state, but such a letter is insufficient to

trigger Maryland’s Long Arm Statute. In Zinz v. Evans and Mitchell Industries, et

al., 22 Md. App. 126 (1974), the Court of Special Appeals found that special

jurisdiction could not be applied to a defendant alleged to have mailed a letter

Maryland from Georgia. “The causal act is separated from the resulting injury.

Both elements must be present before personal jurisdiction will be inferred.” Zinz

at 144.

It follows that if a letter addressed to Maryland does not establish special

jurisdiction, comments on the Internet not addressed to anyone in this state cannot

trigger the statute either, and that has been the conclusion of the U. S. District

Court as it has applied § 6-103(b)(3) to cases involving the Internet.

Harmful speech occurs in the state where the speech originates. In

Dring, a non-resident defendant used a listserv to circulate an e-

mail that allegedly harmed a Maryland resident. Dring, 423

F.Supp.2d at 542-44. The court found “no evidence that Defendant

sent the e-mail in question from Maryland.” Id. at 546. He merely

“sat at a computer in New Jersey.” Id. Consequently, the court

dismissed the complaint for lack of personal jurisdiction. Id. at 549.

Likewise, a non-resident defendant in Zinz mailed copies of anallegedly defamatory letter to Maryland residents. Zinz, 324 A.2d

at 142-43. The court compared Maryland’s long-arm statute to

those found in Washington D.C. and Virginia, noting that

provisions analogous to (b)(3) did not confer jurisdiction over

defendants who made defamatory phone calls, or wrote and mailed

defamatory letters, from out-of-state. See id. at 144-45 (citing

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Margoles v. Johns, 483 F.2d 1212 (D.C. Cir. 1973); St. Clair v.

Righter, 250 F.Supp. 148 (W.D. Va. 1966)). The Maryland court

agreed with these interpretations, and dismissed plaintiff's claims

for lack of personal jurisdiction.

…

Thus, the Court does not hold jurisdiction over Defendant under

subsection (b)(3), where the alleged tortious activity all occurred

outside of Maryland.

Winter v. Pinkins, Case No. 14-CV-2125-JKB, Oct. 29, 2014 (D.Md. 2014) at 4, 5,

footnotes omitted.

Because Plaintiff fails to properly allege any act by an out-of-state Defendant

cognizable under the Maryland Long Arm Statute, this Court does not have

personal jurisdiction over any of them, and they should be dismissed from the

instant suit. Without their presence, Mr. Hoge is the sole defendant. Given that

Mr. Hoge is a resident of Carroll County and that he has none of the necessary

connections for venue to lie in Howard County, this suit should have been brought

in Carroll County. This Court is not the proper forum for the instant lawsuit.

b. Plaintiff Has As Agreed to the Hogewash! Terms of Use

Personal jurisdiction is a waivable right, and as such, “‘there are a variety of

legal arrangements by which a litigant may give ‘expressed or implied consent to

the personal jurisdiction of the court.’” Burger King Corp. v. Rudzewicz, 471 U.S.

462, 472 n.14, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Ins. Corp. of Ireland

v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d

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492 (1982)). One of the ways that such consent can be given is by acceptance of a

choice of forum clause such as found in the Hogewash! terms of use.

Not only has Plaintiff tacitly agreed to the Hogewash! terms of use, he has

relied on his interpretation of those terms in his defense of a previous lawsuit. See

Exhibit A at 4, 5. If Plaintiff wishes to have Mr. Hoge bound by the Hogewash!

terms of use, he should be estopped from arguing that those terms do not apply to

him also.

The Hogewash! terms of use specify Carroll County as the forum of choice.

Therefore, venue is not proper in Howard County.

CONCLUSION

Much of Plaintiff’s Opp-Venue filing is untimely and should be stricken. The

remnant does not properly address the issues raised in Mr. Hoge’s MTD2.

WHEREFORE, Mr. Hoge asks this Court to

i.) STRIKE that portion of Plaintiff’s Dkt No. 10/1 filing under the heading

“Hoge’s Motion to Dismiss for Failure to State a Claim,”

ii.) DISMISS the instant lawsuit for improper venue, and

iii.) GRANT such other relief as the Court may find just and proper.

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Date: 27 May, 2015 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 27th day of May, 2015, I served a copy of this filing on

William M. Schmalfeldt by First Class U. S. Mail

William John Joseph Hoge

V ERIFICATION

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, and that all exhibits are true and correct copies of theoriginals.

Date: ____________________________ ___________________________________

__________________________________

__________________________________(print name of notary public)

NOTARY PUBLIC

My commission expires on: ______________________________

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Note: This page was properly signed and the

Verification was properly notarized.


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Exhibit AExtract from Schmalfeldt’s “Defendant’s Reply to Plaintiff’s Opposition to

Defendant’s Motion for Summary Judgment,” Hoge v. Schmalfeldt, Case No. 14-

CV-01683-ELH, ECF No. 49 (D.Md. 2014).


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U.S. DISTRICT COURT FOR THEDISTRICT OF MARYLAND

(Northern Division)

WILLIAM JOHN JOSEPH HOGE ))

Plaintiff, )) Case Number 1:14-cv-01683 ELH

~ )

)

WILLIAM M. SCHMALFELDT ))

Defendant. ))

DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TODEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Now comes Defendant William M. Schmalfeldt with this

memorandum in reply to Plaintiff William John Joseph Hoge ill's

Opposition to Defendant's Motion for Summary Judgment. (ECF 45)

MATERIAL FACTS NOT IN DISPUTE

In his response, Plaintiff listed a few items he believes are material

facts that are still in dispute.

In Defendant's First Amended Answer to Plaintiff's Complaint (ECF

39) Defendant denied that Plaintiff routinely screens comments to his

Hogewash.com blog for "editorial suitability." (ECF 45 (a» It is not clear to

the Defendant how this rises to the level of a "material fact" in a copyright

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infringement lawsuit, since the Plaintiff brings it up the Defendant will

reply. Exhibit A shows several examples of Plaintiff allowing comments that

are either "obscene" or "grossly off topic." Therefore, the issue is not in

dispute and therefore, this reason to deny Defendant's request for Summary

Judgment evaporates.

Plaintiff presents Defendant's lack of knowledge of whether or not the

Plaintiff actually purchased the pseudonymous "Paul Krendler's" copyright

for "Krendler's" "The Thinking Man's Zombie" blog post of April 10, 2014

as a "material fact" that is "still in dispute." That might be true if the

Plaintiff had, in fact, submitted a copyright application with the U.S.

Copyright Office prior to filing the instant case. As previously established,

Plaintiff filed his copyright application for the work he purportedly

purchased from "Krendler" on June 7 - 11 days after filing the instant case

on May 27, 2014. This court has a copy of the Plaintiff's purported

copyright application receipt so no need to kill another tree to reprint it. As

this court made very clear in its Memorandum Opinion on Plaintiff's Motion

for Preliminary Injunction (ECF 31):

It is not entirely clear that the materials plaintiff introduced would

satisfY the requirement articulated in Caner. See 2014 WL 2002835, at

*13.

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It is also apparent that uncertainty exists as to whether a plaintiff's

mere application for a copyright is sufficient, as a matter of law, to

meet the statutory registration requirement found in Section 41 1(a).

Although I need not resolve this issue in order to rule on plaintiff's

preliminary injunction Motion, the uncertainty is a consideration in

assessing plaintiff's ability to prevail on the merits in this case. (Id at

p.20)

In Footnote #7 on Page 19, this court opined:

At the hearing, plaintiff claimed that he is entitled to pursue copyright

claims in connection with material that was posted on Hogewash! andallegedly misused by defendant for a period of 90 days prior to

plaintiff's June 2014 copyright application. Plaintiff cited 17 U .S.C.

9412 to support his position. For purposes of ruling on the Motion, I

need not reach the merits of plaintiff's contention that his copyright

application in June 2014 has retroactive force. (Id. at p. 19)

If Plaintiff had cited 17 USC 411 (a), he would have been forced to

admit that he did not have standing to file a copyright infringement case on

May 27, 2014.

(a) Except for an action brought for a violation of the rights of the

author under section 106A (a), and subject to the provisions of

subsection (b), no civil action for infringement of the copyright in

any United States work shan be instituted until preregistration or

registration of the copyright claim has been made in accordance

with this title. In any case, however, where the deposit, application,

and fee required for registration have been delivered to the Copyright

Office in proper form and registration has been refused, the applicant

is entitled to institute a civil action for infringement if notice thereof,with a copy of the complaint, is served on the Register of Copyrights.

The Register may, at his or her option, become a party to the action

with respect to the issue of registrability of the copyright claim by

entering an appearance within sixty days after such service, but the

Register's failure to become a party shall not deprive the court of

jurisdiction to determine that issue. (Emphasis added)

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Although there is controversy among the various Circuit Courts of

Appeal as to whether to follow the Application Approach or the Registration

Approach in determining eligibility to file a copyright infringement suit,

there is no controversy over having to file a copyright application before

filing a copyright infringement suit. If this Court applies the black letter law

in this case, then this case would be dismissed and this is no longer a

material fact in dispute.

The Plaintiff is playing fast and loose in (c) of his response to

Defendant's Motion for Summary Judgment, although the Defendant's

assertion of denial in his Amended Answer to Plaintiff's Amended

Complaint could have been more artful. Instead of merely stating "denied"

as his reply, Defendant should have admitted he published "My Slow,

Journalistic Death" on or about April 18, 2014, admitted that he reprinted

the entire single line of Plaintiff's "Hogewash" post of April 14, 2014 in

toto, that the e-book was offered for sale and copies were sold. What

Defendant meant to deny was the Plaintiff's assertion that the use infringed

on Plaintiff's copyright, as Plaintiff's extant terms of service allowed such

publication. Plaintiff objects to what he calls a lack of linkage back to

Hogewash.com in the e-book Chapter 13. Exhibit B demonstrates the falsity

of this assertion as each of the comments published in the e-book contained

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a link back to hogewash.com. Whether or not the Plaintiff is aware that the

little yellow line under a series of words constitutes the presence of a

hyperlink is unknown, however, it boggles the imagination to think that a

NASA-employed engineer would not recognize a hyperlink when he sees

one, let alone more than a hundred in a series of pages. Since the use was

allowed under Plaintiff's extant terms of service, and since Plaintiff did not

file a copyright application before filing his copyright infringement suit, this

is not a material fact in dispute.

In his Declarations accompanying the Plaintiff's Response to

Defendant's Motion for Summary Judgment, he includes a redacted e-mail

which he purports to be proof that he purchased the "world book and e-book

rights" to the portion of pseudonymous blogger "Paul Krendler's" April 10

blog post. This is mooted by the fact that Plaintiff filed the instant case on

May 27 but did not apply for copyright for the work until June 7. Plaintiff

seems to believe and cites cases to support his mistaken contention that

filing an amended complaint restarts a lawsuit. Of course, this is not the

case.

In MadStad Engineering, Inc. v. U.S. Patent and Trademark Office,

No.8: l2-cv-OI589-SDM-MAP (M.D. Fla), the court decided that a plaintiff

cannot "manufacture standing" in order to proceed with an infringement suit.

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