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Schmalfeldt,
Plaintiff,
v.
William John Joseph Hoge, et al.,
Defendants.
IN THE
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
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 Hoges Motion
to Dismiss for Failure to State a Claim) was a surreply to Mr. Hoges 31 March
Reply. The second section was a opposition to Mr. Hoges MTD-Venue. Plaintiffs
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.
Hoges 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 HAS NOT EXPLAINED WHY VENUE IS PROPER IN HOWARD COUNTY
a. Plaintiff Has Not Properly Pleaded the Courts 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
2
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;
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 Assn, 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 articles 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.
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
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
STRIKE that portion of Plaintiffs Dkt No. 10/1 filing under the heading
iii.)
GRANT such other relief as the Court may find just and proper.
Respectfully submitted,
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
VERIFICATION
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 the
originals.
Date: ____________________________
___________________________________
__________________________________
__________________________________
(print name of notary public)
NOTARY PUBLIC
Exhibit A
Extract from Schmalfeldts Defendants Reply to Plaintiffs Opposition to
Defendants Motion for Summary Judgment, Hoge v. Schmalfeldt, Case No. 14CV-01683-ELH, ECF No. 49 (D.Md. 2014).
Plaintiff,
)
) Case Number 1:14-cv-01683 ELH
WILLIAM M. SCHMALFELDT
)
)
Defendant.
)
)
(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)
3
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