WILLIAM M.

SCHMALFELDT
WILLIAM J OHN J OSEPH HOGE III
WILLIAM J OHN J OSEPH HOGE III
___ ,film EN7tHED
_,_J ODGED __ J jECEIVEC
Case Number 1:14-cv-01683-ELH
U.S. DISTRICT COURT FOR THE
DISTRICT OF MARY LAND
(Northern Division)
Plaintiff,
Counterclaim Plaintiff,
Counterclaim Plaintiff,
Counterclaim Defendant.
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Defendant. )
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WILLIAM M. SCHMALFELDT )
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Counterclaim Defendant. )
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WILLIAM M. SCHMALFELDT )
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"PAUL KRENDLER" Anonymous Blogger)
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DEFENDANT AND COUNTERCLAIM PLAINTIFF WILLIAM M. SCHMALFELDT'S
FIRST AMENDED ANSWER TO PLAINTIFF HOGE'S AMENDED COMPLAINT, AND
SECOND.AMEND.ED_C!lltNl'J ;;RCLAIM
FIRSi AMENDED ANSWER
Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 1 of 23
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Defendant WilliamM.Schmalfeldt,inhis first amended Answer to Plaintiff
WilliamJ ohnJ oseph RogeIll's Amended Complaint,denies and avers as follows:
NATURE OF THE ACTION
1. Admits this isanaction for copyright infringement against Defendant
Denies unauthorized reproduction, preparation of derivative works,distribution
and public display of Mr. Roge's copyrighted works. Admits Rogeseeks preliminary
and permanent injunctive relief,but denies any damage to Rogeas there was no
unauthorized infringing activity by Defendant
2. Admits the takedown notices. Denies Defendant's behavior was
unlawful or infringing. Deniesacontinuation of unlawful,infringing activities.
3. Denied.
JURISDICTION AND VENUE
4. Admits.
5. Admits.
6. Admits
THE PARTIES
7. Admits
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 2 of 23
8. Admits while objecting to the raising of the Peace Order as it is
irrelevant to this caseand indicative of the Plaintiffs vexatious, vindictive nature
that hewould seek to prejudice this Court by mentioning this unrelated event
MR. HOGE'S COPYRIGHTS
9. Admits.
10. Admits as to Plaintiff allowing commenters who agree with himto
post comments. Denies that Plaintiff screens comments for editorial suitability.
Denies that Plaintiff deletes obscene or grossly off-topic comments. Denies that
Plaintiff canclaimcopyright ownership of comments.
11. Defendant does not have sufficient information to deny or admit to
this assertion.
12. Admits that Plaintiff filedapplications for certificates of registration to
the USCopyright officefor himself and Counterclaim Defendant "Paul Krendler" on
J une5and 7, which happen to beseven and ninedays after heinitiated the instant
case.
COPYRIGHT INFRINGf;MENT
13. Denied.
14. Denied
15. Admits to Plaintiffs sending ofDMCAtakedown notices.
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 3 of 23
16. Admits.
INFRINGEMENT VIA BOOKS AND EBOOKS (COUNTS I. II. AND III)
Count I - My Slow. Journalistic De.a..th
17. All paragraphs above are hereby incorporated by reference.
18. Admits
19. Denied.
20. Denies content was infringing.
21. Denied.
COUNT II - Brain Dead
22. All paragraphs above are hereby incorporated byreference.
23. Admits.
24. Admits.
25. Denies.
COUNT III - Intentional Infliction
26. All paragraphs above are hereby incorporated by reference.
27. Denied.
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 4 of 23
28. Defendant does not have sufficient information to admit or deny
whether or not Plaintiff purchased the world book and e-book rights to the work.
29. Denied.
INFRINGEMENT VIA INTERNET WEBSITES (Counts IV Through XXV)
30. All paragraphs above are hereby incorporated by reference
31. Count IVwas dropped byrequest of Plaintiff onJ une27, 2014. The
rest of the allegation isdenied.
32. Denied.
33. Denied.
34. Denied.
INFRINGEM.BNT VIA TWITTER (Counts XXVI Through XXXVII)
35. All paragraphs above are hereby incorporated byreference.
36. Denied.
37. Denied.
38. Denied.
STATEMENT REGARDING DROPPED COUNTS
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 5 of 23
39. Denied asto Plaintiffs reasons for dropping all counts relating to
items published before March 1, 2014.
EQUITABLE DEFENSES
40. All paragraphs above are hereby incorporated by reference.
41. Plaintiff comes to this lawsuit with Unclean Hands, inas much as heis
guilty of the exact same practices for which hewrongly accuses Defendant inthis
suit
42. Defendant alleges Plaintiff engaged inCopyright Misuse"inamanner
violative of the public policy embodied inthe grant of copyright" (SeeLasercomb
Am. v.Reynolds, 911 F.2d970, 978 (4th Cir. 1990); Practice Mgmt Info. Corp. v. AMA,
121 F.3d516, 520 (9th Cir. 1997) (recognizing misuse where copyright isused to
"secure an exclusive right or limited monopoly not granted bythe Copyright
Office").This Copyright Misusecomes about by Plaintiffs selective enforcement of
his former and current Terms of Servicefor useof his blogmaterial. If you are
someone heagrees with, you are allowed to publish entire Hogewash blogposts
with nary acomplaint. Ifyou are someone Plaintiff disagrees with, you are sued for
using asinglelinefromhisbloginone of your books.
43. Defendant claims Plaintiff has committed Fraud onthe U.S.Copyright
Officeby claiming copyright inmaterial hedoes not own, such as much of the
material hecopied and pasted fromDefendant's "Patriot-Ombudsman" blogthat he
now has the audacity to claimthis Defendant has infringed his copyright by reusing.
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 6 of 23
Byclaiming soleownership of the material heregistered oneweek after initiating
the instant suit, Plaintiff demonstrated the sort of Fraud onthe Copyright Office
alleged inSteele v. Bell. 37Wn. App. 337,679 P.2d964 :
TheCopyright Officehas full authority to cancel copyrights that have been
registered to work that is not "copyrightable." 37C.F.R.201.7.Steele's counsel
cites to Psychopathic Records, Inc.v. Anderson, No. 08Civ.15034,2010 WL
4683470 (E.D.Mich.Nov. 10,2010), and Willseav. Theis, No. 98Civ.6773
(BS)),1999 WL 595629 (S.D.N.Y. Aug. 5, 1999), for the Anderson, No.08 Civ.
15034,2010 WL 4683470 (E.D.Mich.Nov. 10,2010), and Willseav. Theis, No.
98Civ.6773 (BSJ ),1999 WL 595629 (S.D.N.Y. Aug.5, 1999), for the
proposition that district courts may nullifY copyright registrations before the
Copyright Office"if the copyrighted material was not original and therefore
not subject to copyright protection inthe first place." (Mem. of Lawat 10.)
(ld. at p.12)
AFFIRMATIVE DEFENSES
44. All paragraphs above are hereby incorporated by reference.
45. Plaintiff failsto state aclaimupon which relief canbegranted. His
filingof copyright applications seven and nine days after initiating the instant case
renders this entire action moot Although there iscontroversy inthe Courts about
whether the application approach or the registration approach isthe appropriate
standard bywhich aplaintiff can fileacopyright infringement suit, no court has
ruled that aplaintiff cansucceed inacopyright infringement suit instituted before
applying for copyright applications for the material heclaims has been infringed.
Except for anaction brought for aviolation of the rights of the author under
section 106A W, and subject to the provisions of subsection (b), no civil
action for infringement of the copyright in any United States work shall
be instituted until preregistration or registration of the copyright claim
has been made in accordance with this title. Inany case, however, where
the deposit, application, and feerequired for registration have been
delivered to the Copyright Officeinproper formand registration has been
refused, the applicant isentitled to institute acivil action for infringement if
notice thereof, with acopy of the complaint, isserved onthe Register of
Copyrights. The Register may, at his or her option, become aparty to the
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 7 of 23
action with respect to the issue of registrability of the copyright claimby
entering anappearance within sixty days after such service, but the
Register's failure to become aparty shall not deprive the court of jurisdiction
to determine that issue.1? USC411(a) (Emphasis Added)
46. Inthe absence of aproperly filedapplication for copyright, filedprior
to instituting aCopyright Infringement CaseinaU.S.District Court, any other
defense Defendant could offer, such as Fair Use, and the permission granted by
Hoge's previous Terms of Serviceis moot and awaste of this Court's time.
SECOND AMENDED COUNTERCLAIM AGAINST WILLIAM JOHN JOSEPH HOGE III
47. All paragraphs above are hereby incorporated by reference.
48. Counterclaim Plaintiff Schmalfeldt brings this permissive
counterclaim against Counterclaim Defendant Hogeinaccordance with Rule13of
the Federal Rules of Civil Procedure.
49. This court has jurisdiction over this action pursuant to 28USC!i 1331
(Federal Question) sincethe counterclaim arises fromthe Copyright Infringement
claimbrought by Hoge.
SECOND AMENDED COUNTERCLAIM AGAINST ANONYMOUS BLOGGER "PAUL
KRENDLER"
SO. All paragraphs above are hereby incorporated byreference.
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51. Counterclaim Plaintiff Schmalfeldt brings this permissive
counterclaim against Counterclaim Defendant "Krendler" inaccordance with Rule
13of the Federal Rulesof Civil Procedure.
52. This court has jurisdiction over this action pursuant to 28USC!j1332
(Diversity of Citizenship) since"Krendler's" address isnot known at this time.
53. "Krendler" isthe "author" of ablogcalled "TheThinking Man's
Zombie.
54. Thepseudonym "Paul Krendler" was the name of acharacter inthe
movie"Hannibal," played by RayLiotta. Theheader photo of the blogisa
copyrighted photo fromthe movieinwhich the Krendler character isbeing feda
pieceof his own brain by Hannibal Lecter.
55. Krendler's blogseems to belittle more than avehicle for defamation
and libel directed at the Counterclaim Plaintiff.
56. Krendler isthe anonymous person that Counterclaim Defendant Hoge
claims to have purchased the "world book and ebook rights" to ablogentry that
Hogeclaims Schmalfeldt "infringed" inhisbook, "Intentional Infliction."
57. TheCounterclaim Plaintiff has yetto seedocumentation ofa valid,
signed, legal transfer of copyright from"Krendler" to Hoge,yet Hogefiledan
application with the USCopyright Officefor the "Krendler" blogpost onJ une 7, 2014
- nine days after instituting the instant suit.
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 9 of 23
FIRST CLAIMFORRELIEF
Fraudulent Copyright Notice
58. All paragraphs above are hereby incorporated byreference.
59. Counterclaim Defendant Hogeisinviolation of17 USC~506(c):
Any person who, withfraudulent intent, places onany article anotice
of copyright or words of thesame purport that such person knows to
befalse, or who, with fraudulent intent, publicly distributes or
imports for public distribution any article bearing such notice or
words that such person knows to befalse, shall befined not more than
$2,500. (Id.)
60. Hoge's fraudulent intent canbedemonstrated byhis need to punish
Schmalfeldt, using the courts as aweapon. Dozens of right wing bloggers useentire
posts fromHogewash every day without so much as agrumble fromHoge. Infact,
Hoge's Terms of Servicefor Hogewash used to specifically allowanyone to use
material fromHogewash, under certain terms which were met bythe Counterclaim
Plaintiff. Thefact that Hogechanged his terms of service onthe very afternoon of
the Preliminary Injunction hearing inthis Court onJ une27, 2014, inorder to
specifically exclude Counterclaim Plaintiff and afewother progressive bloggers is
telling.
SECONDCLAIMFORRELIEF
False Representation
61. All paragraphs above are hereby incorporated by reference.
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 10 of 23
62. Hogeisinviolation of 17USC~S06(e):
Any person who knowingly makes a false representation of a
material fact in the application for copyright registration
provided for by section ~" - 0..2,or in any written statement filed in
connection with the application, shall be fined not more than
$2,500. (Id.)
63. Thefact that Hogeknowingly made falserepresentation of amaterial
fact inthe application for copyright registration isdemonstrated bythe fact that he
filedFormG/DNfor three months' worth of Hogewash blogs, March, April and May
2014. Heregistered as a" dailynewsletter," although the USCopyright Act does not
support his claim. A" daily newsletter" must bea" work for made for hire." (17 USC~
101). Specifically:
(1) awork prepared byan employee within the scope of his or her
employment; or
(2) awork specially ordered or commissioned for useas a
contribution to acollective work, asapart of amotion picture or
other audiovisual work, asatranslation, asasupplementary work, as
acompilation, asan instructional text, as atest, as answer material for
atest, or asanatlas, if the parties expressly agree inawritten
instrument signed by themthat thework shall beconsidered awork
made for hire. For the purpose of the foregoing sentence, a
" supplementary work" isawork prepared for apublication as a
secondary adjunct to awork byanother author for the purpose of
introducing, concluding, illustrating, explaining, revising, commenting
upon, or assisting inthe useof the other work, such as forewords,
afterwords, pictorial illustrations, maps, charts, tables, editorial notes,
musical arrangements, answer material for tests, bibliographies,
appendixes, and indexes; and an " instructional text" isaliterary,
pictorial, or graphic work prepared for publication and with the
purpose of useinsystematic instructional activities. (Id.)
64. Hogewash, as described by Hoge, isageneral interest blog. To
qualify for registration as a" daily newsletter," it must" contain news or information
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 11 of 23
of interest chiefly to a special group (for example, trade and professional associations,
corporate house organs, schools, colleges, and churches)." (37 CFR Part 202 Section
202.3 (8)(i). Infillingout formG/DN,Hogeneeded to answer both of these points in
the affirmative. which heknows isamisrepresentation of what his blogisand does.
THIRD CLAIM FOR RELIEF
Defamation
65. All paragraphs above are hereby incorporated by reference.
66. Anystatement. whether written or oral, that injures athird party's
reputation. See, e.g. Buckleyv. Fitzsimmons, 509 U.S.259 (1993). Thetort of
defamation includes both libel and slander.
67. Toestablish aprima faciecaseof defamation. four elements are
generally required: afalsestatement purporting to befact concerning another
person or entity; publication or communication of that statement to athird person;
fault onthe part of the person making the statement amounting to intent or at least
negligence; and some harm caused to the person or entity who isthe subject of the
statement
68. BothCounterclaim Defendants are clearly guilty of the civil tort of
Defamation. as defined in28U.S.Code~4101(1):
Theterm "defamation" means any action or other proceeding for
defamation, libel, slander, or similar claimallegingthat forms of
speech are false, have caused damage to reputation or emotional
distress. have presented any person inafalselight. or have resulted in
criticism. dishonor. or condemnation of any person. (Id.)
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FOURTHCLAIMFORRELIEF
False Light Invasion of Privacy
69. Inhis "Thinking Man's Zombie" post of April 23, 2013, Counterclaim
Defendant "Krendler" wrote what hecalled a"parody" inwhich hementioned
Counterclaim Plaintiff and hiswifeby name, livingconditions and city of residence.
"Oldand crazy, fat and demented, Bill Schmalfeldt sat at his
curbside reject card table, wishing he could rub two dimes
together and find an old desk at ayard sale. But who would help
him haul it home? Gail? She was rarely home anymore. She spent
her nights wandering the streets of Elkridge, desperate to get out
of the house, out from under his hateful eye. Away from the
unrelenting stink of old diapers and sweating feet. She spent the
days sleeping off the nights. With the dogs. Hestared at ablank
page, considering his next post.
(http://tblnkingman!i2:pmbie. wordpress.com/2j)14/04 /23/we-
~an-write-whatever-we-want-right/)
This depiction inand of itself places the Counterclaim Plaintiff and his wifein
afalse, defamatory light. Mywifeis not adrinker, nor does shewander the streets. I
donot wear "adult diapers" for my Parkinson's disease.
70. Noonewas safefrom"Krendler's" defamation. Not even my late
identical twin brother who died of astroke in 2004.
Bill remembered those happy days, and dropped his face to his
hands, sobbing.
"What's happened to me? Goddamn it, I'mrelevant. Relevant!"
Heshook afist at the ceiling, splattering mayonnaise on his
monitor.
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Heabsently wiped the stain fromhis monitor and licked the
creamy goooff his finger. Heliked creamy, gooey things. For no
particular reason, hethought of his lost brother Bob.
Oh, God, Bob, hethought, still sucking his finger clean. I miss you
so.
Hesat back and closed his eyes, remembering fondly the many
years of sharing abedroom with the Bobber. Theplayful teasing
andwrestling that almost always ended upwithgrunts and
moans, communicating brotherly loveinthe special language
that only identical twins knew. (Id.)
71. Mywifeand I will celebrate our 25
th
wedding anniversary on
November 17. Shehas donenothing todeserve this sort of treatment from
"Krendler."
Helooked at her sideways, avoiding eyecontact. Shewas wearing
alongArmysurplus winter coat, sohecouldn't tell if shelost
another skirt last night. Inher right hand sheheld anearly empty
fifthof bourbon. Alwayswiththe bourbon. Shehad apparently
lost her right shoe. Theleft one, autilitarian tan orthopedic
number, hadsomething wrapped around the ankle, hanging to
the floor. Pink granny panties. Sexy.
"Blast you, woman!" hegrumbled. ''I'll dothewriting. Youdothe
drinking. Understood?"
Sheresponded with aderisive laugh and ahealthy, wet fart. He
hoped it was afart, anyway. Sometimes hecouldn't besure if he
was hearing the right orifice. Theawards onthe trophy shelf
rattled and for amoment Bill feared some might fall fromthe
cheap particle-board shelf his songavehimonhis fiftieth
birthday. Somegreat milestone daythat was. Hewonders when
thelast time Peter even thought about himwas.
Gail slammed thedoor and shambled back tothe bedroom likea
flatulent zombie. Shewould probably pass out without getting
undressed. Hehoped shedidn't piss thebed again and force
another costly trip toGoodwill. Hedesperately wished this shitty
little shack had asecond bedroom hecould moveinto. But no,
they couldn't afford more than this single-wide onhis paltry
disability payments andgovernment pension. (Id.)
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72. Thefact that this was written with maliceisdemanstrated bythe
ather entries in"Krendler's blag: Hisade to.thejay hegets from"Maladaraus
Mackery," the nat-sa-funny cartaans depicting the Caunterclaim Plaintiff inall
manner af faalish situatians. Thefact that hewas 50. ashamed af this wark that he
saught to.copyright it ananymausly until. aut af nawhere, Caunterclaim Defendant
WJ J HageIII just "happened" to.stumble anta "Krendler's" Twitter accaunt
(@brainsrfaad) to.affer advice. Within anhaur, Hagehad the "warld baak and
ebaak rights" to.this pieceaf filth, which I had published inmybaak "Intentianal
Inflictian" to.demanstrate the depths af depravity Hage's fallawers will sink to.in
arder to.defame and libel the Caunterclaim Plaintiff.
73. Caunterclaim Defendant Hageisalso.guilty af falselight invasian af
privacy inhiswriting abaut Schmalfeldt. This headline framaJ uly14, 2014
Hagewash past, far instance.
.ItB1IISc.hmaJ feI1I.tJ ':J les FI:.aJ ldulent.DMCATakedown Notice
http://h.Qgewash.cam /20 14107 /14 Ibillschmaifeldt-files-fraud ulent-
dmca-takedawn-naticeJ
74. Whileit istrue that Schmalfeldt sent WardPress.cam aDMCAnatice
regarding Hage's cantinued taking af material frammyblags withaut permissian,
there was nathing "fraudulent" abaut it, and WardPress ended uptaking dawn the
wrang past anyway. Instead af remaving the infringing pasts, WardPress taak it
upan themselves to.remave43af 70NASApasts that Hagehad published and had
attempted to.claimcapyright to.inhis Capyright Applicatian far the March, April and
May"issues" af Hagewash. When Schmalfeldt sawthe incarrect takedawn, he
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 15 of 23
immediately notified WordPress, which immediately replaced the images. Hoge
continues to falsely insist that removal of the NASAimages was Schmalfeldt's
original intent, thereby placing Schmal feldt, intentionally, into afalse, defamatory
light.
TheDreadful Pro-SeSchmalfeldtsays that the readers of this blog
have great difficulty understanding what words actually say. Of
course, sometimes the words are confusing.
Thewords that the CabinBoy'Malleges that WordPress neglected to
include inthe DMCAtakedown notice they forwarded to melist the
following blogpost as containing infringing material,
http://hogewash.comL20 14106120lin-re-schmalfeldt-v-hoge-5. and
hedescribes that post as "Itisafull page screencap of my copyrighted
'Patriot-Ombudsman' blogthat I have sincetaken offline, but the
copyright canclearly beseen at the bottom of the page. Usedwithout
permission."
http://hogewash.com/2014 107115Iwhat-the-words-actually-say I
75. Whether or not these postings and others by Hogeand "Krendler"
were done with malice can beascertained byaglanceat their websites, which seem
largely dedicated to defaming meonapersonal level and ruining what was once a
very good online reputation.
TheNew York Times actual malicestandard isdeceptively simple:
knowing falsity or reckless disregard of the truth or falsity of the
defamatory statement. New York Times Co. v. Sullivan, *538 376 U.S.
254,280, 84S.Ct.710, 726, 11L.Ed.2d686 (1964). See also Garrison v.
Louisiana, .379U.S.64. 79, 85S.Ct.209, 218,13 L.Ed.2d125 (1964).
Recklessness means that thepublisher "infact entertained serious
doubts as to the truth of his publication," St Amant v. Thompson, 390
U.S.727, 731, 88_S.Ct.1323, 1325, 20L.Ed.2d262 (1968), or had a
"subjective awareness of probable falsity." Gertz v. Robert Welch, Inc.,
418 U.S.323J 335 n. 6, 94S.Ct.2997. 3005 n. 6, 41 L.Ed.2d789 (1974).
This standard makes it "essential to proving liability that the plaintiff
focus onthe conduct and state of mind of the defendant." Herbert v.
Lando, 441 U.S~t53, 160, 99S.Ct.1635,1640, 60 L.Ed.2d115 (1979).
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Although apublisher does not have anabsolute duty to investigate, St
Amantv. Thompson, 390 U.S.727, 733, 88S.Ct.1323,1326, 20L.Ed.2J l
262 (1968), apublisher cannot feignignorance or profess good faith
when there are clear indications present which bring into question
the truth or falsity of defamatory statements. Apublisher cannot
automatically insure afavorable verdict bytestifying that he
published with abelief that the statements were true. The
finder of fact must determine whether the publication was
indeed made ingoodfaith. Professions of good faithwill be
unlikely to prove persuasive, ... when the publisher's
allegations are soinherently improbable that only areckless
man would have put them incirculation. Likewise,
recklessness maybefound where there are obvious reasons to
doubt the veracity of the informant or the accuracy of his
reports.
St Amant v. Thompson, 390 U.S.727,732, 88S.Ct.1323,1326, 20
L.Ed.2d262 (footnote omitted) (emphasis added). See also Curtis
Publishing Co. v. Butts, 388 U.S.130, 169-70, 87 S.Ct.1975, 1998-1999,
18L.Ed.2d1094 (1967) (Warren, c. J ., concurring); Carson v. Allied
News Co., 529 F.2d206,211 (7th Cir.1976); Grzelak v. Calumet
Publishing Co., 543 F.2d579, 582 (7th Cir. 1975); Fadell v. Minneapolis
Star Tribune Co., 425 F.Supp. 1075, 1084-85 (N.D.Ind.1976), affd,
557 F.2d107 (7th Cir.),cert denied, 434 U.S.966, 98S.Ct.508, 54
L.Ed.2d452 (1977).
GERTZv.ROBERTWELCH.1NC.,680F.2d527. 537 (7th Cir. 1982) 538
76. Intheir writing about Schmalfeldt, the fact that both Hogeand
"Krendler" were aware of the falseand defamatory nature of their writing but chose
to goahead with their malicious publication, both Counterclaim Defendants are
subject to monetary damages
The Supreme Court has recognized that actual injury in
defamation cases is not solely measured by out-of-pocket
economic loss. "Indeed, the more customary types of
actual harm inflicted by defamatory falsehood include
impairment of reputation and standing in the community,
personal humiliation, and mental anguish and suffering."
Gertz v. Robert Welch, Inc., 418 U.S.323. 350, 94 S.Ct.2997,
3012,41 L.Ed.2d 789 (1974). This kind of actual injury was
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clearly established bythe evidence presented at trial. (ld.
at540)
FIFTH CLAIM FOR RELIEF
Intentional Infliction of Emotional Distress and Harassment
77. BothHogeand "Krendler" areresponsible for theintentional infliction
of emotional distress upon theCounterclaim Plaintiff. Thisstress has ledtoan
exacerbation and acceleration of his 14-year battle with Parkinson's disease, as
outlined inExhibit F of Counterclaim Defendant's ReplytoHoge'sMotiontoStrike
Schmalfeldt's Motionto Dismiss (ECF33).
78. TheFourth Circuit Court of Appeals has ruled inGantt v. Security, USA,
Inc. 56 F.3d547 (4th Cir.2004):
Thedistrict court correctly recognized, that inMaryland
(as inmany other jurisdictions) aclaimof intentional
infliction of emotional distress has four elements: (1) The
conduct must beintentional or reckless; (2) [tJheconduct
must beextreme and outrageous; (3) [tJhere must bea
causal connection between thewrongful conduct and the
emotional distress; (4) [tJheemotional distress must be
severe. Manikhi v. Mass Transit Admin. 758 A.2d95, 113
(Md.2000) (internal quotation marks andcitations
omitted). (ld. at pp. 7-8)
79. There canbenoquestion that the repeated taunting by"Krendler" on
hisblog, thedepiction of hiswifeas anincontinent alcoholic promiscuous woman,
thedepiction of theCounterclaim Plaintiff dreaming about sexwith his latetwin
brother meets all four of theelements set forth inGannt v Security, USA.
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80. Theconstant useof the Courts as aweapon against Schmalfeldt by
Hoge, the 367 dismissed criminal charges, the Peace Orders obtained by Hogedue to
his convincing aCarroll County, Maryland, Circuit Court judge that blocking
Schmalfeldt onTwitter would rise to the level of disabling asignificant portion of his
Internet accessibility. Hisusing that Peace Order (and obtaining asixmonth
extension based onthe same story lineto the samejudge) as aweapon against
Schmalfeldt, then trying to followSchmalfeldt's Twitter Account less than one
month after receiving his initial peace order. Hisbringing of this suit when heknew
hehad not properly filedapplications for the material hewas claiming under oath to
have been registered, all have caused Schmalfeldt great emotional distress,
opprobrium inhis community with the several visits fromthe policeto serve
warrants, the brief issuance of anArrest Warrant for Schmalfeldt inNovember
2013, and the stress of having to becarted with his Parkinson's disease symptoms
worsening bythe week fromone courtroom to another to answer this man's
vindictive, vexatious, malicious charges and complaints more than meet the
requirements set down inGannt.
81. Schmalfeldt has made Hogeand "Krendler" aware that they have no
chance to prevail inthis case, given Hoge's violation of 17USC411(a) innot filing
his copyright applications until seven and nine days after heinitiated the instant
suit Their response has been to double down onthe harassment, to invite the
ridicule of their readers. Whileunder CDA230, Hogecannot legally beheld
responsible for his comments, Schmalfeldt asks this Court to take J udicial Noticeof
the nature of the comments sincethe J une17, 2014 Preliminary Injunction Hearing,
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 19 of 23
the invective hurled at prominent UCLALawProfessor EugeneVolokhfor his
Washington Post Blogpost of date inwhich heindicates his agreement with this
Court's decision inthe Preliminary Injunction hearing, and Hoge's seeming
unwillingness to read the handwriting onthewall and accept any sort of face-
saving, graceful exit to this legal quagmire hehas blundered into.
82. Thefact that Hogeinstigated the instant suit two days after being
informed bySchmalfeldt that hehadwithdrawn his own lawsuit against Hogeand
several others onthe advice of his neurologist and the behest of his wifecanonly go
to show Hoge's intent to usethe Court as aweapon, to run Schmalfeldt to the
ground, to continue to accelerate his Parkinson's disease symptoms to the point
where Schmalfeldt iseither totally incapacitated or dead.
INJURY
83. Asadirect and proximate result of Hoge's and "Krendler's" willful,
lnowing and intentional acts as set above, Schmalfelddt suffered permanent injury
to his reputation, to his health, to hisability to earn supplemental freelance income,
and an irreversible increase inthe rate of progression inhis Parkinson's disease.
Havingto spend countless hours, days, weeks and months defending against the
falsenarratives, worrying about the 367 falsecriminal charges, the emotional
harassment caused by numerous death threats by e-mail.Twitter and comments to
his blog(obviously sent by Hogesupporters), the amount of damage done by
"Krendler" and Hoge, who has the temerity to sueSchmalfeldt for $690,000 for use
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of material his previous ToSspecifically allowed, has resulted inpermanent,
irreversible damage that cannot beproperly measured.
PUNITIVE DAMAGES
84. Theactions of Hogeand "Krendler" as demonstrated inthis
Counterclaim represent aremarkable, unbelievable, nearly incomprehensible
amount of malice against someone only Hogehas ever met, someone "Krendler"
knows by name only, aperson neither has alegitimate quarrel with. Theoutrageous,
egregious conduct, insult and perforce gratification and gleeseen inHogeand
"Krendler's" writing about Schmalfeldt, celebrating each perceived victory and each
new decline inSchmalfeldt's health, the causing of irreversible damage to his health
and reputation, requires the most severe punishment this court candeliver.
Accordingly, Schmalfeldt requests anaward of punitive damages beyond and in
excess of any statutory damages to compensate himfor the improper and illegal
removal of his books fromthe marketplace, and the irreversible, permanent damage
done to his health and reputation due to Hoge's continuing manipulation of the
Court to beused asaweapon against Schmalfeldt.
PRAYER FOR RELIEF
WHEREFOREPlaintiff requests the followingrelief fromeach counterclaim
defendant:
Compensatory damages and consequential damages of$1.500.000
fromeach counterclaim defendant.
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 21 of 23
Punitive damages asthe Court may determine appropriate to punish
and deter Hogeand "Krendler" fromever engaging inthis sort of
behavior again and to deter others fromdoing the same.
AnORDERrequiring Hogeand "Krendler" to apologize to Schmalfeldt
ontheir blogs, Twitter accounts, Facebook accounts or any other
Internet platform where they post their opinions. These apologies are
subject to the approval of the Court and Schmalfeldt.
AnORDERrequiring "Krendler" to reveal hisvarious Facebook and
Twitter "sock puppet" accounts.
AnORDERfor equitable relief as appropriate under applicable law,
including but not limited to issuing apermanent injunction that bars
Hogeor "Krendler" fromretaliating against Schmal feldt, his family,
friends, or anyone elseas punishment for Schmalfeldt filingthis
counterclaim.
AnORDERrequiring Hogeand "Krendler" to REMOVEall mention by
name, nickname, inference or any other fashion, any reference to
WilliamM.Schmalfeldt.
AnORDERof this Court referring Hogefor prosecution for violation of
17USC~S06(c) and (e).
Costsand fees incurred inthe prosecution of this Counterclaim.
Anyfurther relief as this Court deems just and appropriate.
}URYDEMAND
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Case 1:14-cv-01683-ELH Document 39 Filed 07/18/14 Page 22 of 23
Defendant and Counterclaim Plaintiff Schmalfeldt hereby demands ajury
trial of all issues inthis action triable as of right by ajury.
Respectfully submitted
DATED: J uly17, 2014
By:
WilliamM.Schmalfeldt, Pro Se
6636 Washington Blvd.,Lot 71
Elkridge, Maryland 21075
bschmalfeldt@comcastnet
410.206-9637 (telephone)
Verification
I certifY under penalty of perjury that the foregoing istrue and correct to the
best of myknowledge and belief.
Certificate of Service
I certifY that onthe 17
th
day ofJ uly, 2014, I served acopy of the foregoing
Replyto Counterclaim Defendant Hoge's Motionto DismissonWilliamJ ohnJ oseph
HogeIII by Certified Mail, Return Receipt Requested to 20RidgeRoad, Westminster,
MD21157
WilliamM.Schmalfeldt
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