Opp to SLAPP Mot Redacted

7/26/2019 Opp to SLAPP Mot Redacted

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William John Joseph Hoge,

Plaintiff,

v.

Brett Kimberlin, et al.,

Defendants.

PLAINTIFFSOPPOSITIONTODEFENDANTSBRETTANDTETYANAKIMBERLINS

MOTIONTODISMISSFORVIOLATIONOFMARYLANDSANTI-SLAPP STATUTE

OR

MOTIONTOSTAYPROCEEDINGSUNTILANTI-SLAPP HEARINGISCONDUCTED

COMESNOWWilliam John Joseph Hoge and opposes Defendants Brett and

Tetyana Kimberlins Motion to Dismiss for Violation of Marylands Anti-SLAPP

Statute or Motion to Stay Proceedings Until Anti-SLAPP Hearing is

Conducted (Docket Item 46). In opposition, Mr. Hoge states as follows:

I. THEINSTANTLAWSUITISNOTASLAPP SUIT

This is how the Maryland Anti-SLAPP law defines a SLAPP suit.

(b) A lawsuit is a SLAPP suit if it is:

(1) Brought in bad faith against a party who has communicated

with a federal, State, or local government body or the public at

large to report on, comment on, rule on, challenge, oppose, or in

any other way exercise rights under the First Amendment of the

U.S. Constitution or Article 10, Article 13, or Article 40 of the

Maryland Declaration of Rights regarding any matter within the

authority of a government body or any issue of public concern;

(2) Materially related to the defendant's communication; and

(3) Intended to inhibit or inhibits the exercise of rights under the

First Amendment of the U.S. Constitution or Article 10, Article

13, or Article 40 of the Maryland Declaration of Rights.

INTHE

CIRCUITCOURTFORCARROLLCOUNTY

MARYLAND

Case No. 06-C-16-070789


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Cts. & Jud. P. 8-507. Nothing in the Kimberlins Anti-SLAPP Motion provides1

any evidence that Mr. Hoge acted with bad faith against the Kimberlins, that he

acted with an intent to inhibit their rights under the First Amendment or the

Declaration of Rights, or that the relief he seeks would inhibit those rights.

As for bad faith, the Kimberlins never actually allege in their Motion that

Mr. Hoge acted in bad faith, and nothing in their Motion would support such a

finding against Mr. Hoge. Nowhere in the Kimberlins Anti-SLAPP Motion do they

deny that they did any of the acts alleged, and nowhere do they offer any evidence

contradicting the facts Mr. Hoge has alleged in the Complaint. Simply put, they

have done nothing to show that Mr. Hoge lacked substantial justification to file the

instant lawsuit.2

As for an imagined intention to inhibit their rights, the Kimberlins try to

Articles 10 and 13 deal with right of free debate within the Legislature and the1

right to petition the Legislature. Neither of the Kimberlins is a member of the

Legislature, and the Complaint does not address any communication direct to the

Legislature.

While there is not a great deal of case law on Marylands Anti-SLAPP Law, Judge2

Masons finding during the 3 September, 2015, Motions Hearing inKimberlin v.

National Bloggers Club, et al. (II)is on point:

And to the extent that the Court is asked to grant relief under the

slap [sic] suit statute, I find with respect to that statute that theresno evidence based upon these motions that I could find at this time

that hes [Kimberlins] acting in bad faith which I would be required

to apply the slap [sic] suit statute.

Kimberlin v. National Bloggers Club, et al. (II), Case No. 403868, Hearing

Transcript (Md. Cir.Ct. Mont. Co. Sept. 3, 2015) at 88. Transcript extract attached

as Exhibit A.

2


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stretch the protections of the Anti-SLAPP Law to cover the acts alleged in Mr.

Hoges Complaint, claiming, for example, that [t]the Anti-Slapp [sic] statute

immunizes a defendant who communicates with a government body. Anti-SLAPP

Motion, 6. Of course, that would normally be true, but it cannot be the case that

the statute protects willful lies told to a District Court Commissioner in order to

cause a false criminal charge to be issued. If such perjury were protected, then it

would not be possible for the tort of malicious prosecution to exist. However, the

tort does exist, and it exists because the First Amendment does not protect perjury

and the Declaration of Rights doesnt protect lying on an Application for Statement

of Charges. Such false statements are the basis of the claims Mr. Hoge has brought

in good faith as Counts I and XI of the Complaint.

Mr. Hoge is not suing the Kimberlins for exercising their right to seek redress

or for seeking protection from the State. Hes suing them for perjuring themselves

by falsely accusing him of crimes. The Kimberlins have not offered any evidence to

the contrary in support of their Motion.

Additionally, the allegations of defamation in the Complaints Counts II

through X lay out the who, what, when, and where of the the Defendants

defamatory acts, demonstrating that the Kimberlins and their Co-Defendants acted

with constitutional malice, and nothing in the Kimberlins Anti-SLAPP Motion

offers any evidence to the contrary. Therefore, none of the Kimberlins

communications are protected under

5-807(c).

In summary, the Complaint alleges that the Kimberlins engaged in

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unprivileged speech by knowingly making false statements to District Court

Commissioners, and it alleges that Brett Kimberlin and other Defendants made

defamatory statements that he and they knew were false. In both contexts, making

and publishing such false statements constitutes constitutional malice under the

applicable case law, and such statements are outside the protection of the Maryland

Anti-SLAPP law.

Finally, nothing in the injunctive relief Mr. Hoge seeks will inhibit the

Kimberlins rights. He only seeks to have them enjoined from further acts of

malicious prosecution, and once again, the Kimberlins havent offered a scintilla of

evidence to the contrary.

The Kimberlins have failed to properly alleged bad faith on Mr. Hoges part.

They have not shown any intention by Mr. Hoge to inhibit their rights. They have

not shown how the relief Mr. Hoge seeks would inhibit their rights. Thus, their

Anti-SLAPP Motion fails to show that the instant lawsuit is a SLAPP suit. The

Motion should be denied.

II. EVENIFTHEINSTANTLAWSUITWEREASLAPP SUIT, THESTATUTEOFFERS

NORELIEFTOTHEKIMBERLINS

Two types of relief are set forth Md. Cts. & Jud. P. 5-807(d). The first is an

expedited hearing on a motion to dismiss. The second is a stay on proceedings in a

lawsuit until the matters about which the defendants communicated with the

government and/or public are settled. Given the unchallenged facts alleged in the

Complaint, neither remedy is available to the Kimberlins.

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a Neither Brett nor Tetyana Kimberlin Have a Proper Motion to Dismiss

Before This Court

Md. Cts. & Jud. P. 5-807(d)(1) allows a defendant to move to [d]ismiss the

alleged SLAPP suit, in which case the court shall hold a hearing on the motion to

dismiss as soon as practicable[.] However, 5-807 does not create a separate basis

for a motion to dismiss, and subsection (d)(1) merely allows for an expedited hearing

of a pending motion to dismiss based on other grounds, such as lack of personal

jurisdiction or failure to state a claim upon which relief can be granted.

The Kimberlins have alleged without evidentiary support that instant

lawsuit is a SLAPP suit, but they have no pending motion to dismiss. Because

neither Brett Kimberlin nor Tetyana Kimberlin has filed a motion pursuant to Rule

2-322, the option for an expedited hearing simply does not apply. There is no

pending motion to dismiss for the Court to hear. Therefore, there is no reason for

the Court to schedule an expedited hearing.

b. All Matters About Which the Kimberlins and Their Co-Defendants

Communicated with the Government and/or the Public Are Settled

Subsection (d)(2) allows a defendant alleging a SLAPP suit to move to stay all

court proceedings until the matter about which he has communicated with the

government or public has been settled. The subsection says that the Defendants

may ask; it does not guarantee that such a request must be granted. The

Kimberlins have not cited any facts or law supporting such a stay.

All of Mr. Hoges claims for malicious prosecution or defamation relate in one

way or another to the false Applications for Statement of Charges or the failed

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peace order petition. As alleged in the Complaint, both of the criminal charges

stemming from the Kimberlins false Applications for Statement of Charges were

resolved in Mr. Hoges favor. Similarly, the peace order petition filed by Brett

Kimberlin was denied by both the District Court and the Circuit Court for

Montgomery County.

As far as the law is concerned, all those matters are settled, and the

Kimberlins have offered no evidence to the contrary in their Motion. Nothing is

pending in any other venue. There is nothing for this Court to wait on.

Therefore, a stay is inappropriate, and no such relief is available.

ADDITIONALMATTERS

Mr. Hoge respectfully asks the Court to take note of the following:

First, Neither Brett nor Tetyana Kimberlin has provided the information

required by Rule 1-311 (i.e., their address(es), telephone numbers, and email

addresses) with their signature blocks on their Motion. Indeed, they have not

provided that information on any paper they have filed with this Court in the

instant lawsuit.

Second, Mr. Hoge has never been served with a copy of Docket Item 46. 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 Courts docket shows that the motion was both

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

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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 4 June, 2016.

Given Brett Kimberlins history of failing to serve court papers on adverse

parties, the Court should take this as a willful violation of the Kimberlins duty to3

serve court papers on all parties who have appeared in this matterwhich by itself

provides a sufficient reason to dismiss the Anti-SLAPP Motion.

CONCLUSION

As demonstrated above, the instant lawsuit is not a SLAPP suit. Even if it

were, none of the relief provided for under the Cts. & Jud. P. 5-807(d) is available

to Brett or Tetyana Kimberlin because they have not filed a motion to dismiss under

Rule 2-322 and because the matters about which they communicated with the

government and/or the public are settled.

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

Kimberlins Motion to Dismiss for Violation of Marylands Anti-SLAPP Statute or

Motion to Stay Proceedings Until Anti-SLAPP Hearing is Conducted (Docket Item

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

SeePlaintiffs Opposition to Defendants Brett and Tetyana Kimberlins Motion to3

Find William Hoge a Vexations Litigant, Docket Item [ ] at 5.

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Date: 6 June, 2016 Respectfully submitted,

William John Joseph Hoge,pro se

20 Ridge Road

Westminster, Maryland 21157(410) 596-2854

[email protected]

CERTIFICATEOFSERVICE

I certify that on the 6th 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

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: 6 June, 2016

William John Joseph Hoge

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Exhibit A

Extract from the transcript of the Motions Hearing held on 3 September, 2015, in

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

Mont. Co. Sept. 3, 2015).


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William John Joseph Hoge,

Plaintiff,

v.

Brett Kimberlin, et al.,

Defendants.

PROPOSEDORDER

Upon consideration of Plaintiffs Opposition to Defendants Brett and Tetyana

Kimberlins Motion to Dismiss for Violation of Marylands Anti-SLAPP Statute or

Motion to Stay Proceedings Until Anti-SLAPP Hearing is Conducted (Docket Item

46) and any reply thereto, this ________ day of _______________, 2016, this Court

finds that the above captioned matter is not a SLAPP suit and ORDERSthat said

Motion (Docket Item 46) SHALLBEand is DENIED.

It is so ORDERED.

_______________________________________

Circuit Court Judge

INTHE

CIRCUITCOURTFORCARROLLCOUNTY

MARYLAND

Case No. 06-C-16-070789

Documents

Opp to SLAPP Mot Redacted