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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.

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


COMES NOW William 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. THE INSTANT LAWSUIT IS NOT A SLAPP 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.

Cts. & Jud. P. 8-507.1 Nothing in the Kimberlins Anti-SLAPP Motion provides
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 the
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.
2

While there is not a great deal of case law on Marylands Anti-SLAPP Law, Judge
Masons finding during the 3 September, 2015, Motions Hearing in Kimberlin 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 theres
no 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

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
3

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. EVEN IF THE INSTANT LAWSUIT WERE A SLAPP SUIT, THE STATUTE OFFERS
NO RELIEF TO THE KIMBERLINS
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.

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
5

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.
ADDITIONAL MATTERS
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
6

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,3 the Court should take this as a willful violation of the Kimberlins duty to
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 DENY 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 for such other relief as the Court may find just and proper.

See Plaintiffs Opposition to Defendants Brett and Tetyana Kimberlins Motion to


Find William Hoge a Vexations Litigant, Docket Item [ ] at 5.
7

Date: 6 June, 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 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

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).

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

------------------------------X
:
BRETT KIMBERLIN,
:
:
Plaintiff,
:
:
v.
:
:
NATIONAL BLOGGERS CLUB, et al.:
:
Defendants.
:
:
------------------------------X

Civil No. 403868

HEARING

Rockville, Maryland

September 3, 2015

DEPOSITION SERVICES, INC.


12321 Middlebrook Road, Suite 210
Germantown, Maryland 20874
(301) 881-3344

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

------------------------------X
:
BRETT KIMBERLIN,
:
:
Plaintiff,
:
:
v.
:
:
NATIONAL BLOGGERS CLUB, et al.:
:
Defendant.
:
:
------------------------------X

Civil No. 403868

Rockville, Maryland
September 3, 2015
WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE:

THE HONORABLE MICHAEL D. MASON, JUDGE

APPEARANCES:
FOR THE PLAINTIFF:
KIMBERLIN BRETT, Pro se
8100 Beech Tree Road
Bethesda, Maryland 20817
FOR DEFENDANT BREITBART.COM:
MARK I. BAILEN, Esq.
Baker & Hostetler, LLP
1050 Connecticut Avenue, Suite 1100
Washington, D.C. 20036
FOR DEFENDANT WILLIAN HOGE:
PATRICK OSTRONIC, Esq.
932 Hungerford Drive, Suite 28A
Rockville, Maryland 20850
DEPOSITION SERVICES, INC.

APPEARANCES (Continued):
FOR DEFENDANTS MICHELLE MALKIN AND TWITCHY:
MICHAEL F. SMITH, Esq.
Smith Appellate Law Firm
7566 Main Street, Suite 307
Sykesville, Maryland 21784
FOR DEFENDANT AARON WALKER:
AARON WALKER, Pro se
P.O. Box 3075
Manassas, Virginia 20108
FOR DEFENDANTS DEBLASE INC., MERCURY RADIO ARTS,
AND GLENN BECK:
SCOTT J. SHOULDER, Esq.
Cowan, Debaiet, Abrahams & Sheppard, LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
FOR DEFENDANT MANDY NAGY:
T. BRUCE GODFREY, Esq.
Jezic, Krum & Moyse, LLC
2730 University Blvd, Suite 604
Silver Spring, Maryland 20902
FOR DEFENDANTS DAN BACKER AND DB CAPITOL STRATEGIES:
CHRISTINA PAULINE SIROIS, Esq.
DB Capitol Strategies, PLLC
203 South Union Street, Suite 300
Alexandria, Virginia 22314

DEPOSITION SERVICES, INC.

I N D E X
Page

Judge's Rulings

86

cgg

86

MR. KIMBERLIN:

And that's the reason and so at this

stage of the proceeding I mean obviously we're on motion for

summary judgment --

THE COURT:

I understand.

MR. KIMBERLIN:

-- or directed verdict, you know.

You can say well you haven't proved it.

blah, blah, blah, but at this stage, you know, let me go

through discovery, let me get some discovery from these guys.

Let me get their e-mails.

10

THE COURT:

11

MR. KIMBERLIN:

12

THE COURT:

13

MR. KIMBERLIN:

14

THE COURT:

15

MR. KIMBERLIN:

16

THE COURT:

17

COUNSEL:

18
19
20
21

You didn't show this

Okay.
Let me --

Have a seat.
Okay.

Because I've heard all of the arguments.


All right.

Okay, so -Your Honor, may I address a couple of

points in response to Mr. Kimberlin?


THE COURT:

No.
JUDGE'S RULING

First with respect to the motions at Docket Entry 44

22

by the defendants Malkin and Twitchy, at 46 with respect to the

23

motion by Breitbart; at 48 I've already basically well 48 and

24

49 the motion by the defendants Blaze, Inc., first based upon

25

the authority of the Fourth Circuit case Young, I find that

cgg

87

there is no personal jurisdiction in this case over those

defendants.

case is very distinguishable where you have a subscription

service and in that particular case to the extent they had a

lot of subscribers in California, they're obviously deriving

substantial revenues from California, but that's not here.

None of these are running subscription services, so I find the

arguments that defendants make with respect to the issue of

personal jurisdiction in each instance are persuasive and the

I think the Supreme Case the National Enquirer

10

Court has no personal jurisdiction over any of those

11

defendants.

12

In the alternative to the extent that the Court did

13

have personal jurisdiction I will adopt the arguments of the

14

defendants on their motion to dismiss that the claim should be

15

dismissed except as follows:

16

should apply a one year statute limitations because the law of

17

the State of Maryland in my view until the Court of Special

18

Appeals has overruled is that the statute of limitations for

19

false light is three years.

20

the Court of Appeals that suggest that maybe the Court of

21

Special Appeals should revisit their opinion, but it's not up

22

to me to reverse the Court of Special Appeals.

23

such time as that case is reversed I agree to be bound by it.

24
25

I do not believe that this Court

There is substantial language in

And so until

To the extent that any of their arguments are


predicated upon the finding that you're a public figure, I

cgg

88

don't believe that that is an issue that the Court could decide

on this motion to dismiss.

public figure for purposes of these motions to dismiss.

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

slap suit statute, I find with respect to that statute that

there's no evidence based upon these motions that I could find

at this time that he's acting in bad faith which I would be

required to apply the slap suit statute.

fact that this is basically a reiteration of what has been

So I don't find that you are a


And to

However, given the

10

filed in the federal courts because basically the enterprise

11

under RICO is almost identical to the concept of a civil

12

conspiracy and since the motions to dismiss were pending in

13

federal court I think somebody said since October of last year

14

that you've had a long time to know what they are alleging in

15

terms of the absence of any conspiracy among them and the

16

failure of the complaint to set that forth that the dismissal

17

is granted without leave to amend as to these defendants.

18

the dismissal as to those defendants is final.

19

So,

Turning to 55 there's Mr. Hoge's motion to sanction

20

the plaintiff and find the plaintiff in contempt of court.

21

This relates to pleadings that were allegedly filed by Mr.

22

Kimberlin relating to a motion for alternative service on Akbar

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who's now been dismissed and I noticed that Mr. Kimberlin's

24

motion for alternative service had been previously denied by

25

Judge Albright.

So in light of the fact that motion's been

cgg

89

denied by Judge Albright, I decline to take further action at

this time, although it would be of enormous concern to the

Court if I were to find that any party was filing documents

with the Court that had been altered or amended as Judge Ryan

obviously expressed a great deal of concern.

Now I have a motion at Docket Entry 58, which dealt


with and this is by Mr. Godfrey, is he here?

MR. GODFREY:

THE COURT:

Yes, Your Honor.

10

MR. GODFREY:

11

THE COURT:

Come on up.
May I approach?
Yes, and this is the motion at tab 58 for

12

defendant Mandy Nagy's motion to appoint counsel and extend the

13

time which was unopposed.

14

troubled by appointing an attorney to act for a ward because if

15

I do that potentially then whatever, I'm assuming jurisdiction

16

and maybe what we do here binds the ward.

17

sued is really the mother.

18

representative capacity.

19

representative capacity, why can't the mother hire you to file

20

the motion to dismiss on her behalf alleging she's not the

21

guardian of this ward.

22

have to go through having somebody appointed or going through a

23

Guardian Ad Litem proceeding to get somebody appointed to hire

24

you as an attorney for a ward who is not even in Maryland.

25

mean I agree she ought to be, somebody ought to be represented

But let me ask this because I'm

The party who was

Now she was sued apparently in a

But if there is no such

She can't be sued.

In that way I don't

109

Digitally signed by Caroline G Gibson


DIGITALLY SIGNED CERTIFICATE
DEPOSITION SERVICES, INC. hereby certifies that the

foregoing pages represent an accurate transcript of the


duplicated electronic sound recording of the proceedings in the
Circuit Court for Montgomery County in the matter of:
Civil No. 403868
BRETT KIMBERLIN
v.
NATIONAL BLOGGERS CLUB, et al.

By:

_________________________
Caroline G Gibson
Transcriber

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

PROPOSED ORDER

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 ORDERS that said
Motion (Docket Item 46) SHALL BE and is DENIED.
It is so ORDERED.

_______________________________________
Circuit Court Judge

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