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8/12/2019 Reply to Hoge's Response to Motion for Summary Judgment, Aug. 4
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"
U.S. DISTRICT COURT FOR THE
DISTRICT OF MARYLAND
(Northern Division)
WILLIAM JOHN JOSEPH HOGE )
)
Plaintiff, )
) Case Number 1:14-cv-01683 ELH
v. )
)
WILLIAM M. SCHMALFELDT )
)
Defendant. )
______________________________)
DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO
DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Now comes Defendant William M. Schmalfeldt with this
memorandum in reply to Plaintiff William John Joseph Hoge IIIs
Opposition to Defendants 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 Defendants First Amended Answer to Plaintiffs 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 Defendants request for Summary
Judgment evaporates.
Plaintiff presents Defendants lack of knowledge of whether or not the
Plaintiff actually purchased the pseudonymous Paul Krendlers copyright
for Krendlers The Thinking Mans 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 Plaintiffs 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 Plaintiffs 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 plaintiffs
mere application for a copyright is sufficient, as a matter of law, to
meet the statutory registration requirement found in Section 411(a).
Although I need not resolve this issue in order to rule on plaintiffs
preliminary injunction Motion, the uncertainty is a consideration inassessing plaintiffs ability to prevail on the merits in this case. (Idat
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! and
allegedly misused by defendant for a period of 90 days prior to
plaintiffs June 2014 copyright application. Plaintiff cited 17 U.S.C.
412 to support his position. For purposes of ruling on the Motion, Ineed not reach the merits of plaintiffs 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 shall 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
Registers failure to become a party shall not deprive the court of
jurisdiction to determine that issue. (Emphasis added)
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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 Plaintiffs 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 Plaintiffs Response to
Defendants 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 Krendlers 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.
InMadStadEngineering, Inc. v. U.S. Patent and Trademark Office,
No. 8:12-cv-01589-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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'
On appeal, MadStad argues that the district court incorrectly assumed
that it would not purchase additional security equipment because of
the AIA (LeahySmith America Invents Act). MadStad contends that
it has already suffered injury attributable to the AIA because it didpurchase and implement enhanced security measures after the passage
of the AIA. MadStad further insists that the district court incorrectly
assumed that computer hacking is an exotic scenario. MadStad
contends that it detects intrusions on its system every week and points
to a number of statistics that indicate computer hacking is prevalent in
the United States.
MadStad's arguments miss the mark. In order to establish standing,
the injury must be, inter alia, fairly traceable to the challenged
action.Monsanto, 561 U.S. at 149. The point of the district court'sanalysis was not to downplay the risk of hackers, but to emphasize all
of the unlikely steps required for MadStad to suffer injury fairly
traceable to any alleged increased risk of hacking caused by the AIA.
See MadStad, 2013 WL 3155280, at *6. The mere fact that MadStad,
like all other people and companies, faces cyber threats does not
create standing. In fact, MadStad cites statistics that indicate hacking
was a growing threat well before the AIA was even enacted. (Id.)
-
TheMadStadcourt cited the United States Supreme Court ruling in
Clapper v. Amnesty International USA, U.S. , 133 S.Ct. 1138, 185
L.Ed.2d 264 (2013)
The Supreme Court held that Amnesty did not have standing to assert
a constitutional challenge to FISA because its argument rested on its
speculative, subjective fear that:
(1) the Government will decide to target the communications of non-
U.S. persons with whom they communicate; (2) in doing so, the
Government will choose to invoke its authority under 1881a rather
than utilizing another method of surveillance; (3) the Article III judges
who serve on the Foreign Intelligence Surveillance Court will
conclude that the Government's proposed surveillance procedures
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(
satisfy 1881a's many safeguards and are consistent with the Fourth
Amendment; (4) the Government will succeed in intercepting the
communications of [Amnesty's] contacts; and (5) [Amnesty] will be
[a] part[y] to the particular communications that the Government
intercepts.
Id. at 1148. Because it found each of these steps highly speculative
and contingent on specific choices by the Government, the FISA
Court, and Amnesty itself, the Supreme Court decline[d] to abandon
[its] usual reluctance to endorse standing theories that rest on
speculation about the decisions of independent actors.Id. at 1150.
For the reasons stated above, Plaintiffs purchase of Krendlers
blog entry is no longer a material fact in dispute.
Defendant understands that tone of voice does not translate well in
the printed word. As a writer, Defendant assumes the reader will be
intelligent enough to get the joke without having to be told its a joke.
When Defendant wrote in his book Intentional Infliction that he did not
believe that Krendler would sue him for using the material because he would
have to reveal his identity to do so, the Defendant meant it as a sarcastic
aside, not as expectation that Defendant would be sued as Plaintiff alleges.
This sort of scenario is a recurring theme in Defendants dealings with the
Plaintiff. The Plaintiff took Beware the Ides of March to be a death threat
aimed at him. Defendant has learned that in his communications with
Plaintiff, he has to be clear and careful in his choice of words, as if talking to
a child, as the Plaintiff is likely to either inadvertently or advertently
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)
misunderstand or misrepresent what Defendant said or wrote in an effort to
twist the statement to Plaintiffs advantage.
In paragraph (i) of Plaintiffs response to Defendants Motion for
Preliminary Judgment, Plaintiff goes on about his various counts against the
Defendant. These counts as alleged by Plaintiff are all moot as a result of the
fact that he did not apply for copyright applications for the March, April and
May editions of Hogewash until June 5, after instigating the instant suit on
May 27. Therefore, because of 17 USC 411(a), these counts cannot be
considered a material fact in dispute.
In what Defendant fears is yet another effort to confuse the issue and
muddy the waters for the Court, in paragraph (j) of his Response, he alludes
to Defendants allegation that Plaintiff attempted to register copyrights for
works in the public domain. It is true that Plaintiff attempts to do so as he
does not exclude any of the 70 NASA photos included in his registration of
the March, April and May 2014 issues of Hogewash as prescribed by the
US Copyright Office. The Plaintiff denies he attempted to register these
items, but there is no indication that he sets these images aside as he
attempts to register three months worth of blog posts. However, the issue is
mooted again by the fact that the Plaintiff did not apply for a Copyright
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*
until June 5, after filing the instant case on May 27. Therefore, this is not a
material fact in dispute.
In paragraph (k) Plaintiff complains that Defendant accuses him of
trying to register the Defendants work under his own copyright. Using the
same rationale as demonstrated by his failure to set aside the NASA
photographs from his blanket copyright applications, Plaintiff does not set
aside the portions of Defendants blog that were used on Plaintiffs blog.
Again, the issue is mooted by the fact that the Plaintiff did not apply for a
Copyright until June 5, after filing the instant case on May 27. Therefore,
this is not a material fact in dispute.
In paragraph (l), the Plaintiff complains about Defendants allegation
that he comes to the instant case with unclean hands. There are instances,
despite Plaintiffs denials, where he used substantial portions of Defendants
blog on his own blog. Yet, the issue is mooted again by the fact that the
Plaintiff did not apply for a Copyright until June 5, after filing the instant
case on May 27. Therefore, this is not a material fact in dispute.
In paragraph (m), Plaintiff alleges that Defendant asserts Plaintiffs
copyright applications are defective on multiple grounds. He fails to
describe these grounds. However, the issue is mooted again by the fact
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that the Plaintiff did not apply for a Copyright until June 5, after filing the
instant case on May 27. Therefore, this is not a material fact in dispute.
Since none of the so-called Material Facts alleged by Plaintiff as
still being in dispute are, in fact, in dispute, this Court should grant
Defendants motion for Summary Judgment at the earliest possible time.
Plaintiff alleges the motion is premature as he should be allowed
sufficient time to conduct discover as to fully develop a cross motion and
supporting memorandum and to allow for the possibility of settlement via
ADR, the Defendant is at a loss for a legally acceptable word for
balderdash. For one thing, there will be no settlement of this copyright
case in ADR as the Plaintiff does not have a valid complaint, again, having
filed his copyright applications a week and more after filing the instant case.
There may be a settlement of the incipient counterclaim. Time will tell.
But as far as Plaintiffs assertion that Defendant misapplied the law to
some of the undisputed facts? Again, we reach into the lectionary of
terminology in search for a word that is similar to balderdash that wont
offend the Courts sensibilities.
Hoge argues that his filing of an Amended Complaint means the
original complaint is null and void. While that may be true, filing an
amended complaint, as explained earlier, does not restart a copyright
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infringement suit and, as elucidated inMadStad v. UPSTO, one cannot
manufacture standing as a case progresses.
Hoge goes into a long treatise about the effect of amending a
complaint and so on and so on, but none of it deals with the very real fact
that once a lawsuit is filed, the lawsuit is filed. And 17 USC 411(a) must be
applied.
The Plaintiff makes the point about my admitting that the copyright
applications were filed as if that somehow proves his case. Of course they
were filed. Defendant and the Court saw what the Plaintiff purports is the
application. Hoge says, this amounts to a judicial admission of the filings.
OK.
Despite this Courts lesson in the meaning of the decision in Collins v.
Does 1-22, 11-cv-01772-AW, Hoge resurrects it and tries to reanimate it as
an argument for the validity of his registration. In the memorandum opinion
for the Plaintiffs Preliminary Injunction, as stated earlier in this brief, the
Court addressed the fallacy of that contention.
Plaintiff alleges that the Defendant misunderstands copyright abuse.
One of Plaintiffs failings is his assumption that he is the only one who
understands the legal issues in these matters, as demonstrated by his multiple
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attempts to instruct this Court on the finer points of copyright law in the
Preliminary Injunction hearing.
Copyright misuse has nothing to do with Defendants argument for
invalidating Plaintiffs copyright registration. The applications are invalid
because they are invalid. He attempted to file three months worth of
Hogewash blogs as a daily newsletter when the blog does not fit the
requirements as described in Circular 62a definitions of a daily newsletter.
Hogewash is not a work for hire. It is a hobby blog. It is not news intended
for a special interest group, like a church, club, association, school, etc. In
fact (Exhibit C), Mr. Hoge explains that he writes what interests him and if
anyone else reads it, that means they are interested in it as well.
Despite the very nice story about the Morton Salt Shaker, that has
nothing to do with my allegations of copyright misuse which are part of the
counterclaim, not the copyright infringement case.
Hoge again argues (in case the Court missed it several pages earlier)
that he did not try to register copyright for works that do not belong to him.
However, as Defendant demonstrates earlier in this brief, Hoge makes no
exception in his applications for the public domain NASA photos, or the
portions of the Defendants blog all of which are grouped and included in
his improper registration of the blog as a Daily Newsletter.
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Whether or not charges are brought against Mr. Hoge for violation of
17 USC 506(c) or (e) is a matter for this court or law enforcement. It has no
bearing on the copyright infringement case.
In as much as the Plaintiff, fresh off the glory of his single victory
against this Defendant in the granting of a Peace Order, Hoge warned
Defendant not to contact him unless it was about a settlement offer. By
settlement offer, Hoge means a decision about how much I intend to pay
him. So, Defendant is forced to wonder just how in the world he was
supposed to coordinate with Hoge over whether or not the Plaintiff intended
to file a cross motion. In fact, on July 29, 2014, Plaintiff attempted to file a
Peace Order against Defendant for the crime of contacting him via e-mail for
something that did not relate directly to a settlement offer. The Peace Order
was denied by the District Court. Hoge has appealed to the Carroll County
Circuit Court. (Exhibit D)
Given that contacting Hoge for any reason is like trying to pet a
rattlesnake, Defendant is loath to discuss anything with Plaintiff.
As stated earlier, Defendant sees no reason to enter into a settlement
discussion with the Plaintiff as there is nothing to discuss. This Defendant is
certainly not going to give into Plaintiffs monetary demands or any other
demand related to the alleged infringement. Defendant will attend the
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hearing on August 14 as ordered, but other than the terms of settlement of
Defendants counterclaim, Defendant has absolutely nothing to discuss with
the Plaintiff as regards to the copyright infringement case, and this Court can
render the whole point moot by granting Defendants motion for a summary
judgment, or by dismissing Plaintiffs infringement casesua sponte.
WHEREFORE, Mr. Schmalfeldt asks the Court to rein in Mr. Hoges
vexatious, vindictive use of the court system, to deny any and all motions
filed by Plaintiff in the copyright infringement case, GRANT summary
judgment or DISMISS the casesua sponteor however else this Court can
bring this bad law school examination of a case against this Defendant to a
halt and allow the Defendant to proceed with his counterclaim.
DATED: AUGUST 4, 2014 Respectfully submitted,
________________________________________
William M. Schmalfeldt
6636 Washington Blvd. Lot 71
Elkridge, MD 21075
410-206-9637bschmalfeldt@comcast.net
Verification
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I certify under penalty of perjury that the foregoing is true and correct
to the best of my knowledge and belief and all copies are true and correct
representations of the original documents.
William M. Schmalfeldt
Certificate of Service
I certify that on the 14hday of August, 2014, I served a copy of the
foregoing Reply to Plaintiffs Motion for Preliminary Injunction and
Memorandum in Support of Defendants Motion to Dismiss by First Class
Mail to W.J.J.Hoge, 20 Ridge Road, Westminster, MD 21157, Certified,Return Receipt Requested.
William M. Schmalfeldt
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EXHIBIT A
A SELECTION OF COMMENTS
FROM HOGEWASH SHOWINGHOGES UNWILLINGNESS TO
REDACT COMMENTS THAT
ARE EITHER OFF TOPIC OF
OBSCENE
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From a Blog post from Hogewash, http://hogewash.com/2014/08/02/team-
kimberlin-post-of-the-day-339-- the subject is a receipt in the Brett
Kimberlin case. Somehow, it becomes a thread about Schmalfeldt.
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This is from a Hogewash post, http://hogewash.com/2014/08/01/breaking-
kimberlin-ordered-to-pay-sanction, the subject being Brett Kimberlin
Forced to Pay Sanctions. As usual
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(
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Some various, miscellaneous attack comments of the sort Hoge encourages.
Family members are not excluded, such as this shot at my wife.
The Court will no doubt recall that my wife was a key player in the filth that
Hoge claims to have purchased from the pseudonymous Paul Krendler.
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Leroy Oddswatch, who has changed his handle to Leroy Schmalfeldt, is no
cousin of mine. He claims to have known me as a child. I didnt have all that
many cousins, but I knew them all.
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"(
I found this one interesting as I figured all along the only reason Hoge
pushed so hard for his peace order was so that he and Walker (his right hand
man, makes every court appearance with him) would have the right to call
me an Adjudicated Harasser.
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The topic of this next post was one of Hoges delightful Are You Pondering
What Im Pondering bits of whimsy.
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EXHIBIT B
A SEGMENT OF AN EXHIBIT
HOGE OFFERED IN HIS
RESPONSE AND
DECLARATION, INDICATING
THE PRESENCE OF LINESINDICATED THE PRESENCE OF
HYPERLINKS, FOLLOWED BY
SEVERAL INSTANCES OF MY
ORIGINAL PDF VERSION OF
MY SLOW, JOURNALISTICDEATH SHOWING WHERE
THOSE LINKS LEAD.
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EXHIBIT C
A BLOG POST FROM
HOGEWASH PROVING THAT
THE BLOG DOES NOT MEETTHE SPECIFICATIONS FOR A
DAILY NEWSLETTER AS
ELUCIDATED IN CIRCULAR 62a
OF THE US COPYRIGHT
OFFICE, FOLLOWED BY PAGETWO OF CIRCULAR 62a
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EXHIBIT D
DOCUMENTS SHOWING THAT
PLAINTIFF HOGE, DURING
THE PROGRESS OF THIS CASE,
IS TRYING YET AGAIN TO GET
A PEACE ORDER AGAINST ME
FOR CONTACTING HIM IN
WAYS THAT HE DOES NOTAPPROVE, A CLEAR ABUSE OF
THE COURTS AND PROOF OF
HIS VEXATIOUS NATURE.
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.?
Carroll County
DISTRICT COURT OF
MARYLAND
FO R
Work:
City/Lounty
t
ocated at
l0l
N. Court
St.,
Westminster,
MD
21157
caseNo.
3P
5X5*Jot4
Court Address
William M.
Schmalfeldt
Respondent
Trailer 7
l,
6636Washington
Blvd.
o*\ffdbli?rinster,
MD
2
I
I 57
Ho*",
4-
street
nooress'fl1pil?ge,
lv{o ua75
vs .
Ciry,
State,
zip Code
HoBE:
..-.--**
Work:
.-._--
Teledpne
Numbe(s)
elephone
Numbe(s)
City,
State,
Zip
Code
PETITION
FOR PEACE ORDER
(NOTE:
Fill
in
the
Jollowine,.Checkins
the
sppropfiate.
Qoxe-;..lJyoy
nee.Q
qdlitional paper,
ask
the clerk.)
The
Respondent committed
the
folrowing
acts
against
KesPondeffwilliam
John Joseph
Hoge
---_ffi
irhin
the
pasr
30 days on
the
dates stated
below.
(check
all that
apply)
ft
ficHng
I
punching
fl
choking
il
slapping
I
shooting
f]
*p" or other sexual
offense
(or
attempt)
EI
tritting
with
object
fl
stabbing
fl
shovingfl
threats
of
violence
Et
harass.ent
f]
stalking
D
detaining against
will
fl
t
"rpr,
I
mdicious destruction
of
property
E
other
lT
f.,tla.alllfiBhtffi)pts:,t
ndaP
srfz*t*ta ##r#,#;,{:ilffW#ilxksittrf
frf{i8f"v{ff*,Entwr*:"ffi,1f'
can.):
___-___:'
not
provide
to
a
business
relationship with
a
third
parfy.
William
John
Joseph Hoge
20 Ridge Road
Copyright
Act
a
he
ieaulaing
in disruption
of
a
commercial
website. Threats to
file
criminal
charges
2.
I
know of the
following court cases
involving
the Respondent
and
me :
u.s. DiES#6[ courr
".rr#dHf
PJrfifff*nt
,[iXr
niteo
Resu[s or Status
fil
vou
know)
Pendrn
g
setuement
conrerence
Circuit
Court
peace
order
2013
Ordor
granted.6
month extension
granted.
Respondent
was subject
to a
peace order
3.Describeallotherharmthe\e1Pondenthascausedy9qqldgiv.e^date(s),ifknown
issued
by Judge Stansfield
of tlie
Circuit
Court on
14
June,2013.
Because
of
continued
harassment,
the order
wa s
extended
for 6
months on
9 Dec,20l3.
Order
and
extension
were
appealed.
Court of
Appeals
denied
cert
on both
appeals.
4. I
want the Respondent
to be ordered:
I
NOf to commir
or threaten to commit
any of
the acts
listed
in
paragraph
I against
William
John
Joseph
Hoge
William
John
Joseph
Hoge
m
EI
tr
NOT to contact, attempt
to
,
NOT
to
go
to the
residence(s) at
NOT
to
go
to the sehool(s)
at
E NOf
to
go
to the
work
place(s)
at
f]
ro
go
to counseling.
fl ro
go
ro
mediation,
I
fo
pay
the
filing
fees
and' court costs.
f] otner
specific
relief:
I
solemnly affirm
under the
penalties
of
perjury
that
the contents
of this
Petition
are true
to
the best of
my knowledge,
information,
and belief .
l7luly,20l4
NOTICE
TO
TETITIONER
Any individual
who
knowingly
provides false
information
in
a
Petition
for Peace
Order
is
guilty
of a
misdemeanor
and
on
conviction is subject
to
a
fine not exceeding
$l
,000
or imprisonment
not
exceeding
90
days or both.
DC/PO
1(Rev.2l2W3)
8/12/2019 Reply to Hoge's Response to Motion for Summary Judgment, Aug. 4
52/54
$
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DISTRICT
COURT OF
MARYLAND
FOR
CARROLL COUNTY
101 NORTH
COURT ST, WESTMINSTER,
MD
21157-5111
Case
No. 1002SP005252014
Date:
07 117
12414
10:17
a.m.
WILLIAM
JOHN JOSEPH
HOGE
vs
WILLIAM
M
SCHMALFELDT
ORDER OF DENIAL OF PETITION FOR PEACE ORDER
After
the appearance
of
the
PETITIONER,
an d
The
petition
is
denied because: NO STATUTORY BASIS FO R
Date:0711712014
;:1i
$
il':r"''
* ,,'
*l'-
.*
*
*
cc-Dc/Po
15(4/2008)
Page
1
8/12/2019 Reply to Hoge's Response to Motion for Summary Judgment, Aug. 4
53/54
8/12/2019 Reply to Hoge's Response to Motion for Summary Judgment, Aug. 4
54/54
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