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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN


MILWAUKEE DIVISION
WILLIAM SCHMALFELDT,
Case No. 2:15-cv-01516-NJ
Plaintiff,
v.
ERIC P. JOHNSON, SARAH PALMER,
and JOHN AND JANE DOES,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF THE JOINT SUPPLEMENTAL MOTION
TO DISMISS FILED BY DEFENDANTS SARAH PALMER AND ERIC JOHNSON
INTRODUCTION
The original motion to dismiss mentioned three specific reasons to grant dismissal: lack
of subject matter jurisdiction, lack of personal jurisdiction, and failure to provide sufficient
service of process. Those reasons have only become stronger as time has progressed
For instance, these Defendants have argued that the Plaintiffs attempted service of
process included an inoperative complaintnamely the proposed First Amended Complaint
(hereinafter FAC) (Docket # 6). On March 31, 2016, this Court decided to treat the Plaintiff as
if he had properly moved to amend his complaint and declared that [t]he Amended Complaint
(Docket # 6) is now the operative complaint. Order of March 31, 2016 (Docket # 36). That
means that the Defendants position was correcton the date that the Plaintiff attempted service,
such service did not include the complaint that was operative at that time. Likewise, Mr.
Johnsons argument that this Court cannot exercise personal jurisdiction over him is only

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strengthened by the adoption of the FAC as the operative complaint, because the FAC alleges
fewer contacts with Wisconsin than the original complaint.1
In addition to those arguments, this Supplement seeks to have this case dismissed for two
additional reasons. First, the time during which the Plaintiff could have served any Defendant
has passed. Second, the Plaintiff has failed to state a claim for which relief can be granted.
Specifically, there is no such thing as false light invasion of privacy in Wisconsin law, and the
Plaintiff has failed to properly allege misappropriation of name or likeness, or defamation. For
each of these reasonssubject matter jurisdiction, personal jurisdiction, insufficient process,
failure to provide timely service of process and failure to state a claimthe FAC should be
dismissed.
I.
WISCONSIN DOESNT RECOGNIZE A CAUSE OF ACTION FOR FALSE LIGHT
INVASION OF PRIVACY
The easiest matter to dispose of is the claim for false light invasion of privacy. Simply
put, it doesnt exist in Wisconsin law. Wisconsin does not recognize false light invasion of
privacy. Ladd v. Uecker, 323 Wis. 2d 798, 780 N.W.2d 216, 221 (Wis. App. 2010); see also
Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 928-29 (Wis. 1989) (noting that the tort of
invasion of privacy was created statutorily and that false light was omitted from the statute).
Accordingly, all claims for false light invasion of privacy must be dismissed.

Further, this Court can only consider the declarations of Mr. Johnson and Mrs. Palmer in
relation to whether personal jurisdiction exists in this case. Under Purdue Research v. SanofiSynthelabo, S.A., 338 F.3d 773, 782-83 (7th Cir. 2003) once the defendant has submitted
affidavits or other evidence in opposition to the exercise of jurisdiction, the plaintiff must go
beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction.
The Plaintiff has failed to oppose the Defendants motion to dismiss for lack of jurisdiction, and
the Defendants Motion to Dismiss for Lack of Jurisdiction included declarations refuting many
of the Plaintiffs claims related to jurisdiction.
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II.
THE PLAINTIFF HAS FAILED TO PROPERLY ALLEGE A CLAIM BASED ON
MISAPPROPRIATION OF NAME OR LIKENESS
The Plaintiffs cause of action for misappropriation of name or likeness is the most
absurd he attempts to make. After spending forty paragraphs in the FAC alleging that the
Defendants have essentially trashed his reputation, the Plaintiff suddenly decides that one of the
Defendants is trading on his good name.
Invasion of privacy by misappropriation of name or likeness is defined in Wis. Stat.
995.50(2)(b) as follows:
The use, for advertising purposes or for purposes of trade, of the name, portrait or
picture of any living person, without having first obtained the written consent of
the person or, if the person is a minor, of his or her parent or guardian.
The Plaintiffs claim that Sarah Palmer has violated this statute is frivolous for six reasons.
First, his allegations are purely conclusory. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662,
681 (2009) (It is the conclusory nature of respondents allegations, rather than their
extravagantly fanciful nature, that disentitles them to the presumption of truth).
Second, the tort of misappropriation of name or likeness cannot be used to suppress
protected expression. See Stayart v. Google Inc., 710 F.3d 719 (7th Cir. 2013) (noting that the
statute must be construed narrowly and not used to curtail the right of free speech, or free
press). For this reason, the common law has developed an incidental use exception in cases
such as Habush v. Cannon, 346 Wis.2d 709, 717 (Wis. App. 2013):
The common-law doctrine of incidental use prevents the Subsection (2)(b) tort
from being applied to minor or trivial uses of another persons name, or in
publications with news or other literary or entertainment value, which do not
exploit the commercial value associated with a living persons name. The words
unreasonably invaded should not be construed any broader than necessary to
keep these incidental uses from the statutes reach.
This is in line with how other states have interpreted the same cause of action. For instance, in
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Lawrence v. A.S. Abell Co., 299 Md. 697, 703 (1982), Marylands highest court applied the
incidental use doctrine as follows:
The fact that the defendant is engaged in the business of publication, for example
of a newspaper, out of which he makes or seeks to make a profit, is not enough to
make the incidental publication a commercial use of the name or likeness. Thus a
newspaper, although it is not a philanthropic institution, does not become liable
under the rule stated ... to every person whose name or likeness it publishes.
The Plaintiff has failed to allege that non-incidental uses have occurred. Thus, the Plaintiff is
attempting to do in this case what the incidental use exception is designed to prevent: the use of
the misappropriation tort to suppress news, commentary, and criticism of the Plaintiff that he
doesnt like.
Third, the Plaintiffs most basic error is that there is no cause of action for such
appropriation unless someone is using the Plaintiffs good reputation for his or her economic
benefit:
As comment c to this section [in the Restatement (Second) of Torts 652C]
explains [i]n order that there may be liability under the rule stated in this Section,
the defendant must have appropriated to his own use or benefit the reputation,
prestige, social or commercial standing, public interest or other values of the
plaintiffs name or likeness.
Hannigan v Liberty Mutual, Case No. 98-2643 (Wis. Ct. App., Aug., 1999). For instance, if
Nike sold Air Jordans emblazoned with the familiar silhouette of retired basketball player
Michael Jordan without Mr. Jordans permission, he would have a cause of action against Nike
because the company would be taking advantage of his enduring good reputation as an athlete to
sell its athletic shoes. However, that isnt what the Plaintiff has alleged in this case. In this case,
the Plaintiff hasnt claimed that Mrs. Palmer has taken advantage of his good name; he alleges
that she (and others) ruined his allegedly good name and allegedly made money in the process of
doing so. That simply isnt what the tort is about.
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Fourth, the Hannigan court found there can be no misappropriation of name or likeness
unless the Plaintiffs name has value as follows:
Because Hannigan has alleged no publicity value of his namethat is, no
reputation, prestige, social or commercial standing, public interest or other value
of his name-and no purpose of commercial exploitation on the part of any
defendant, the allegations of the complaint are insufficient to state a claim under
895.50(2)(b).
Not only has the Plaintiff equally failed to allege such publicity value in his name, but also, upon
information and belief, there is no such value.
Fifth, the statute requires that such misappropriation be for advertising purposes or for
purposes of trade. The sole attempt the Plaintiff has made to meet this requirement is to allege
that Mrs. Palmer has a donation button on her website in paragraph 45 of the FAC. However,
that is not a use for trade purposes as a matter of law.
Costanza v. Seinfeld, et al., 693 N.Y.S.2d 897 (N.Y.Sup. 1999) affd. as mod., 279 A.D.2d
255, 719 N.Y.S.2d 29 (1st Dept.2001) is instructive on this point. Although it is a New York
case, the Seventh Circuit has noted that
In drafting section 995.50, the Wisconsin legislature used New Yorks privacy
statute as a model. Judith Endejan, Comment, The Tort of Misappropriation of
Name or Likeness Under Wisconsins New Privacy Law, 1978 WIS. L.REV. 1029,
1034 & n. 30 (1978). The text of subsection 995.50(2)(b) duplicates nearly
verbatim New York Civil Rights Law 50, so [c]ase law under the New York
privacy statute may be particularly useful because subsection (2)(b) was modeled
after the New York law. Id. at 1041 (internal citations omitted). Sound analysis
of Wisconsin privacy law as codified in section 995.50 therefore includes
consideration of the developing common law of privacy in Wisconsin, as well as
in other jurisdictions, especially in New York.
Bogie v. Rosenberg, 705 F.3d 603, 610 (7th Cir. 2013).2 Accordingly, this Court should, in

N. Y. CIVIL RIGHTS LAW 50 reads as follows:


Right of privacy. A person, firm or corporation that uses for advertising purposes,
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seeking to interpret [Wisconsins] law as we predict the states highest court would, id. at 610,
take developments in New York law as persuasive authority.
In the Seinfeld case, Michael Costanza claimed that the character George Costanza on the
popular sitcom Seinfeld was based on him, and, therefore, the show continually misappropriated
his name and likeness.3 The Seinfeld court found in favor of the defendants, however, because
the use was not for advertising or trade purposes as follows:
defendants note the limited nature of the relief provided by Civil Rights Law 50,
51. It extends only to the use of a name or likeness for trade or advertising. ... In a
case similar to this lawsuit involving the play Six Degrees of Separation, it was
held that works of fiction and satire do not fall within the narrow scope of the
statutory phrases advertising and trade. ... The Seinfeld television program
was a fictional comedic presentation. It does not fall within the scope of trade or
advertising[.]
If the creation of Seinfeld, which was once the top-rated hit on American TV4 and which today
one can buy the entire series for around $75 on DVD,5 is not considered to be a use for purposes
of trade, then certainly the creation of a tiny blog which uses the Plaintiffs name as it freely
mixes news, commentary, and criticism surrounding the Plaintiffs activities doesnt suddenly

or for the purposes of trade, the name, portrait or picture of any living person
without having first obtained the written consent of such person, or if a minor of
his or her parent or guardian, is guilty of a misdemeanor.
As this Court can see, the language from for advertising purposes to parent or guardian is
precisely the same as the language found in Wis. Sta. 995.50(2)(b).
3
Although this might qualify as common knowledge, Seinfeld was a popular sitcom that ran
from 1989 to 1998 on NBC television. The four main characters were Jerry Seinfeld, George
Costanza, Elaine Benes, and Cosmo Kramer, and nearly every episode focused on the
misadventures of those four principal characters. See generally Internet Movie Database:
Seinfeld, available at http://www.imdb.com/title/tt0098904/.
4
Gerard ODonovan, et. al, The 10 Best Sitcoms of All Time, THE TELEGRAPH, Nov. 10, 2015,
available at http://www.telegraph.co.uk/culture/tvandradio/10121664/The-10-best-TV-sitcomsof-all-time.html.
5
See Seinfeld: The Complete Series, available at http://www.amazon.com/Seinfeld-TheComplete-Series-Jerry/dp/B00EIJTLK4 (listing the price of the DVD box-set of the entire series
as around $75).
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become for trade purposes when there is a donation button that people might or might not hit.
Sixth, and finally, the Plaintiff has made no proper allegation as to how he has been
damaged by the alleged use of his name and likeness or how Mrs. Palmer proximately caused
such damage.
Any one of those flaws would be sufficient to prevent any cause of action for
misappropriation of name or likeness. This motion has outlined six of them. Therefore, the
Plaintiffs claim for invasion of privacy by misappropriation of his name or likeness should be
dismissed.
III.
THE PLAINTIFF HAS FAILED TO PROPERLY ALLEGE DEFAMATION
Turning to defamation, the Plaintiffs failures in this regard are legion. First, when the
alleged statements are examined in context, the statements are often not actually about him.
Second, the Plaintiff never properly alleges all of the elements of defamation in relation to any
alleged statementparticularly falsity, state of mind, or damages.

Third, those alleged

statements that appear to be about him are actually true, substantially true, or protected opinion.
For all of these reasons, the Plaintiffs defamation claims should be dismissed for failure to state
a claim.
A.

Many of the Statements Cited By the Plaintiff Are Not Actually About Him.
Under Wisconsin Law, a Plaintiff claiming defamation must show the following:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the
existence of special harm caused by the publication.

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See, e.g., Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis.2d 905, 447 N.W.2d
105, 108 (Wis. App. 1989). In this case, the Plaintiff has repeatedly stumbled on the first
requirement: that it be a statement about him.
For instance, in FAC 22, the Plaintiff claims that Defendant Johnson wrote the
following about the Plaintiff (allegedly writing as BusPassOffice)with apologies for the
language:6
It maybe [sic] the guy who tied up those boy scouts and raped them repeatedly as
described in his last unsold album that no one except a judge and a jury are going
to listen too.
Nice touch about peeing on them, classy and pornographic kiddie rape fantasies.
[W]onder how thats going to play in court with three raping boyscout [sic]
fantasies now produced?
The Plaintiff claims that this discussion can be found at the following Internet address: http://
thinkingmanszombie.com/2015/09/good-morning-dumbfuck-96/. Attached as Exhibit A is a true
and correct copy of the piece found at that address and the attached comments.7
When examined in the context, it doesnt appear that the comment quoted in FAC 22 is
actually about the Plaintiff. For one thing, the Plaintiffs name is never used in the post. Further,
judging by the nesting of the comments,8 the statement attributed to Defendant Johnson appears
to be in response to this comment by a person writing as Rob Crawford:

This will be a recurring problem throughout this memorandumit is not practical to shield this
Court from all of the coarse language involved.
7
Documents such as this can be considered without converting this into a Rule 56 motion for
summary judgment because they are documents that are central to the complaint and are
referred to in it, Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
8
This website, like many, allows people to respond to specific comments, displaying the reply as
indented on gradation further than the comment it is referring to. This practice is known as
nested comments, and it allows people to engage in conversations apart from or tangential
from the piece it is attached to.
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Has anyone identified the lawyer hes working with? You know, the guy with an
investigative team willing to work for old mayo jars, but not able to compose a
simple letter?
Thus, when this BusPassOffice writes that[i]t maybe [sic] the guy who tied up those boy
scouts..., he is plainly referring to this unidentified lawyer working with an unidentified third
party. Therefore, that statement is not about the Plaintiff.9
Similarly, in FAC 23, the Plaintiff claims that Defendant Johnson made another
comment about him:
our [sic] favorite above it all is raping more boy scouts in audio fantasies, thank
goodness he actually admits it
Oh and hes harassing Lynn Thomas from his rent assisted senior home and
ever[y]one sent this to the management:
@dirtyschnitzel
Like with last quoted passage, the Plaintiff claims that this passage comes from a particular web
page (found at http://hogewash.com/2015/09/29/team-kimberlin-post-of-the-day-933/), and a
true and correct copy of the page referred to is attached as Exhibit B. Further, as with the
previous alleged quote, there is no indication who this writer is talking about. The subject of the
post is an unidentified person named Kimberlin (upon information and belief, Brett
Kimberlin). But in terms of Mr. Johnsons alleged comment, the only thing the reader knows
about who is referred to in the passage is that the person 1) is having vile fantasies involving boy
scouts and 2) is harassing a person named Lynn Thomas.10 Is the Plaintiff confessing that he has
done both? If so, then these statements are not defamatory. If he is not confessing, however,
then how does the Plaintiff know this is about him? More to the point, what has he alleged to
9

Furthermore, it seems to be obviously a joke that no one is likely to misinterpret as a statement


of fact.
10
Eventually, the Plaintiffs alleged twitter handle shows up in the comment, but this is after the
discussion of vile fantasies and harassment.
9
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indicate that the statement is about him? Having failed to establish that this is a statement about
the Plaintiff, the FAC has failed to state a cause of action in relation to it.
The Plaintiff also does his Carly Simon routine11 in FAC 24, the Plaintiff apparently
thinking that this statement, allegedly by Johnson, was about him:
If he really sent that email, then he confessed to sending material that can be
considered child porn audio, if he didnt send the email, he demonstrated that it is
or can be considered child porn.
Once again, the Plaintiff claims this passage comes from a particular web page (https://billysez.
wordpress.com/2015/10/14/so-lemmie-get-this-straight-here/), and a true and correct copy of that
page is attached as Exhibit C. This Court can see that there is no indication whatsoever that the
he in that passage refers to the Plaintiff.
With the next example, it is clear that the alleged statements by Mr. Johnson are not
about the Plaintiff, and the Plaintiff appears to have selectively edited the comment to obscure
that fact. Specifically, in FAC 25 the Plaintiff attributes a long passage to Mr. Johnson that
begins as follows:
Do you know this guy: He is a creepy sta[l]king harassing child porn producer:
He violated the hatch act hundreds of times
He lied to people on XMfan who threatened to report it saying he had extra super
secret permission to do so
The passage goes on listing a large number of immoral acts by the person only identified as this
guy. The Plaintiff has claimed once again that the statement is from a specific web page (http://
thinkingmanszombie.com/2015/10/please-welcome-our-not-so-new-staff-contributor/),

and

true and correct copy of the page is attached as Exhibit D. If this Court examines the comment
11

See, Carly Simon, Youre so Vain, on THE BEST OF CARLY SIMON (Warner Bros. Uk 2008)
(singing to an unidentified former lover that youre so vain, you probably think this song is
about you).
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in context, it will see that it is a comment attached to a piece where the main author (identified as
Paul Krendler) is introducing an obviously fictional contributor to the site called Bill
Parvocampus.
The fact that the alleged comment by Mr. Johnson is about this Bill Parvocampus
rather than the Plaintiff is made obvious when one examines the line the Plaintiff edited out.
Heres the same passage Mr. Johnson allegedly wrote, in context, with the missing text in bold:
Bill P
Do you know this guy: He is a creepy sta[l]king harassing child porn producer:
He violated the hatch act hundreds of times
He lied to people on XMfan who threatened to report it saying he had extra super secret
permission to do so
Exhibit D, p. 16. In other words, the Plaintiff cut out the line from this alleged statement by
Defendant Johnson where he says who is talking about: Bill Pan obvious reference to this
fictional Bill Parvocampus character. Accordingly, this statement is not about the Plaintiff,
either, and the Plaintiff has selectively edited that comment in an apparent attempt to obscure
that fact.
Meanwhile, FAC 28 cites to http://thinkingmanszombie.com/2016/01/its-really-okdumbfuck/ as allegedly showing Defendant Johnson writing: Cardinal Management has been
forwarded these tweets - Im sure they are approving of this horrid use of their name and images
for his pornographic tweets. A true and correct copy of the web page is attached as Exhibit E,
and it appears to refer to a number of Tweets by a person identifying himself as The Youngest

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Old Dude on Twitter. There is no indication who The Youngest Old Dude is, and, therefore,
the Plaintiff has failed to establish that this is a statement about him.12
In each case, when these statements are examined in context, there is no evidence that the
statements are about the Plaintiff. Although the Plaintiff makes a conclusory allegation that
these comments are about him, such conclusory allegations must be disregarded, Iqbal, 556 U.S.
at 678 (Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice), and they are often actively contradicted by the documents the
Plaintiff refers to. For this reason alone, the Plaintiff has failed to plead defamation in regard to
paragraphs 22-25 and 28 of the FAC.
B.

The Plaintiff Serially Fails to Plead Falsity.


Another element of defamation that must be pled is falsity. However, the Plaintiff has

often failed to pleadeven in the most conclusory fashionthat element. For instance, in FAC
22-24 and 26-28, the Plaintiff alleges that these Defendants made many statements, but
doesnt bother to allege that they are untrue. Accordingly, for paragraphs 22-24 and 26-28, the
Plaintiff has failed to state a claim for defamation.
C.

The Plaintiff Fails to Plead Negligence or Malice.


Another element that must be pled is the state of mind of the Defendants. As noted in

Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) a state may not impose liability without
fault, and, therefore, Wisconsin law requires, at the minimum, negligence.13 However, to the
extent that the Plaintiff has claimed that the statements are false, he has not made a single
12

Furthermore the statement doesnt appear to be defamatory because it appears to be an opinion


based on disclosed facts. The writer is discussing what s/he considers to be the nature of these
tweetsapparently referring to a number of tweets by this person writing as The Youngest
Old Dude. An opinion based on disclosed facts cannot constitute defamation. Milsap v.
Journal/Sentinel Inc., 100 F.3d 1265, 1268 (7th Cir. 1996).
13
See, e.g., Denny v. Mertz, 106 Wis.2d 636, 318 N.W.2d 141, 150 (Wis. 1982).
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allegation that these Defendants made those statements negligentlylet alone that they acted
with a higher degree of fault, such as malice. The Plaintiff has not even made conclusory
allegations of negligence, and there are no non-conclusory claims about any persons mental
state.
The closest the Plaintiff comes to properly alleging the requisite intent is in the second
paragraph 30 of FAC,14 where he quotes this passage allegedly written by Defendant Palmer as
proof of defamatory intent:
Bill, you seem to think that anything that makes you mad is defamation. You said
the words. YOU SAID THEM. And I usually try my best to keep them in a
reasonable amount of context, although some things just need to be pull-quoted to
stand on their own because they are just that LULZY.15
From this, the Plaintiff claims that Defendant Palmer admitted that she takes words written by
Plaintiff out of context to make them more entertaining for her readership. Id. But the decision
to take something out of context does not imply a defamatory intent without imparting any false
information at all. Rather, it is often done simply for entertainment purposes. For instance, there
is a website called WeLovetheIraqiInformationMinister.com, which includes many quotes
from Muhammed Saeed al-Sahaf, the former propagandist for Saddam Husseins regime known
affectionately or mockingly as Baghdad Bob. A sample of the quotes show that Mr. al-Sahaf
had a knack for saying things that were quite funny, with no context needed, such as:16
My feelings - as usual - we will slaughter them all
Our initial assessment is that they will all die
Please, please! The Americans are relying on what I called yesterday a desperate
and stupid method.
14

The Plaintiffs paragraph numbering is not always sequential.


Lulzy is internet slang for funny or hilarious.
16
All of these are taken from http://www.welovetheiraqiinformationminister.com/, last visited on
April 4, 2016.
15

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This is only a sample of many comments that are, frankly, pretty amusing and colorful, without
the need for any context. And this is a common form of writing on the internet. For instance,
there is an entire website devoted to quotes that are fun to read out of context.17 Likewise, there
is a Twitter account called @AwfulFantasy which features examples of terrible science fiction
and fantasy writing taken out of context.18 There are equally articles mocking former President
George W. Bush,19 and mocking most of the Republican candidates for President circa
September, 2015,20 by taking them out of context. None of these pieces or websites are
inherently defamatory, just because they happen to present a comment or twenty-five out of
context. Therefore a statement that occasionally a person takes another persons words out of
context for amusement purposes cannot be read as intent to defame.
In any case, the Plaintiff doesnt explain how that intent expressed by Mrs. Palmer relates
to the single defamatory passage attributed to her found in paragraph 29 of the FAC. He merely
claims the passage in FAC 29 is false in the first paragraph 30 of the FAC. He doesnt claim
that she has taken anything he wrote out-of-context. Therefore, his complaint that she has stated

17

See http://www.outofcontextquotes.com/wordpress/.
Some examples of quotes found in the @AwfulFantasy twitter account include the following:
Patty unearthed the ancient stone tablet and read its inscription. Send this tablet to 10 other
archaeologists or you will have bad luck, (found at https://twitter.com/AwfulFantasy/status
/717817657253347328), He opened the Tome of Dahr, unleashing the evil within. Dark magic
popped out and scared everyonelike a Jack-in-the-box. It killed a dog, (found at https://twitter
.com/AwfulFantasy/status/717561893011861505), and Only after the Radioactive Monster
began terrorizing the town in a sports car did the people realize it must be having a half-life
crisis, (found at https://twitter.com/AwfulFantasy/status/707662020766797824).
19
Rodrigue Tremblay, George W. Bush: May I Quote You, Mr. President?, GLOBAL RESEARCH,
(Nov. 10, 2015) available at http://www.globalresearch.ca/may-i-quote-you-mr-president/3907.
20
Shane Ryan, The 25 Funniest Out-of-Context Quotes from the Second GOP Debate, PASTE
MAGAZINE (Sept. 17, 2015) available at http://www.pastemagazine.com/articles/2015/09/the-25funniest-out-of-context-quotes-from-the-sec.html.
18

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that she has taken things out of context wholly fails to relate to the single claim of defamation he
has made against her.
The only other allegation relating to the state of mind of either of these Defendants is the
strange allegation that they belong to a cult of personality under the sway of an unnamed
individual. Even if true, this wholly fails to relate to whether they negligently or maliciously
uttered any falsehood about the Plaintiff. With no other allegations relating to the state of mind
of either defendant, the Plaintiff has failed to allege that they acted negligently, let alone with
malice. In short, he wishes this Court to find them liable for falsehoodsto the extent that he
even claims they are telling falsehoods about himwithout fault, which is prohibited by
Wisconsin law. For this additional reason, the Plaintiff has failed to properly plead defamation
against any of these Defendants.
D.

The Plaintiff Fails to Properly Plead Damages.


Another reason why the claim for defamation fails is because the Plaintiff makes only

conclusory allegations that he was harmed, all found in FAC 31 as follows:


Because of the actions of these named defendants and others, Plaintiffs online
reputation has been permanently scarred. Due to the extensive nature of the harm
caused to Plaintiff he asks for $100,000 from each Defendant in assumed
damages and $500,000 from each Defendant in Punitive Damages.
Such bare-bones allegations are ordinarily insufficient to survive a motion to dismiss under cases
such as Iqbal. However, the Plaintiff has also invoked the doctrine of defamation per se. See,
FAC 20.
There are several problems with this. First, not all of the allegations fit into the four
categories that constitute libel per se. Limiting ourselves only to those statements where the
Plaintiff has arguably made sufficient allegations that the statements involved were actually
about him, supra, pp. 7-12, the following allegations are attributed to these Defendants: 1) the
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Plaintiff is producing child pornography,21 2) the Plaintiff has made audio recordings depicting
boy scouts being raped and the recording known as Fingernails Reeking of Poo,22 and 3)
claims that he had continued to harass William Hoge III 4) even as his wife begged him to stop.
Only two of these even potentially invokes the libel per se rule in that the statements potentially
refer to criminal conduct: the claim that the Plaintiff harassed Mr. Hoge or the claim that he
created child pornography. The claim that he ignored his wifes pleas and the claim that he
produced recordings depicting boy scouts being raped are obviously statements that could only
be defamation per quod, if it is defamatory at all.
Further, it is not clear that Johnsons alleged claim that the Plaintiff has produced child
pornography is defamation per se. When interpreting allegedly defamatory statements
the words must be reasonably interpreted and must be construed in the plain and
popular sense in which they would naturally be understood in the context in
which they were used and under the circumstances they were uttered.
Frinzi v. Hanson, 30 Wis.2d 271, 140 N.W.2d 259, 261 (Wis., 1966). It is neither natural nor
popular (i.e. common) to assume that every reference to child pornography is necessarily a
reference to material that violates the U.S. Code. This intuition is supported by the opinion in
Unroch v. Monderer, 2006 NY Slip Op 52113(U) (N.Y. Sup. Ct. 10/18/2006) which held that
calling a person a mere pornographer was not libel per se as follows: Initially, calling plaintiff
a pornographer is too general to impute the commission of a crime. Further, the same court
noted that [g]iven that a person can engage in pornography and not violate New Yorks
obscenity statutes ... it cannot be said that plaintiff was accused of committing a serious offense.
While it is not controlling authority, this case is persuasive. Likewise, as the Plaintiff is fond of

21
22

Allegedly by Defendant Johnson, FAC 26.


Allegedly by Defendant Johnson, FAC 27.
16
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 16 of 28 Document 40

noting, not everything that is pornographic that involves or depicts children is necessarily
criminal child pornography.
Likewise, it is less than clear that the Defendant Palmers alleged statement that the
Plaintiff harassed Mr. Hoge would also be defamation per se. In second paragraph 29 of the
FAC the Plaintiff attributes the following statement to Mrs. Palmer:23
If Bill Schmalfeldt wants us/the world at large to believe that WJJ Hoge and his
cult of personality are responsible for his wifes death, then Bill Schmalfeldt
needs to take responsibility for his obsession with WJJ Hoge that caused his
wifes death. I would submit that if Bill Schmalfeldt had not been a creepy
cyberstalker cry-bully, there would not have developed anything that Bill
Schmalfeldt would decide was a cult of personality that would then be
responsible for the death of his wife. His wife who BEGGED him to stop
harassing WJJ Hoge and to let it go. BEGGED HIM! AND HE REFUSED TO!
Husband of the year right here, folks!
If what Bill Schmalfeldt says is true about his wife, then Bill Schmalfeldt ALSO
needs to take responsibility for the death of Michael Malone. Because reasons.
That Bill Schmalfeldt decided were so. Goose, gander, sauce and all that.
Bill Schmalfeldt just forfeited the last scrap of his humanity card. Well done,
DUMBFUCK! Well done!
As with prior passages, the Plaintiff also cites to a particular web address (https://billysez.
wordpress.com/2016/01/16/i-just-cant-even-3/), and the full piece is reproduced as Exhibit F. It
is also worth quoting from where the Plaintiff disputes the factual allegations in that paragraph.
Here is the entirety of his denial of these allegations, found in the first paragraph 30 of the FAC:
Plaintiffs wife, in fact, never begged Plaintiff to stop harassing anyone. In
fact, after years of asking Plaintiff to take no legal action, Mrs. Schmalfeldt was
an enthusiastic supporter of a lawsuit Plaintiff filed in the spring of 2015.

23

The Plaintiff redacted a number of names for no discernible reason from this passage. The
original names have been restored in this version based on Exhibit F.
17
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 17 of 28 Document 40

Thus, the Plaintiff is only disputing the claim that his late wife begged him to stop harassing Mr.
Hoge, so the Defendants anticipate that the Plaintiff will attempt to stretch that comment to be
interpreted as an accusation that Mr. Schmalfeldt was harassing Mr. Hoge.
Of course, stretching it to be an accusation that the Plaintiff actually was harassing Mr.
Hoge would violate the Frinzi instruction to interpret words in their natural meaning. The
natural meaning is that the late Mrs. Schmalfeldt is accusing the Plaintiff of harassment, and
Mrs. Palmer is merely reporting that.

Further, it is not altogether clear that harassment

necessarily be a reference to criminal harassment. For instance, Websters Dictionary defines to


harass a person in relevant part as to trouble, worry, or torment, as with cares, debts, repeated
questions, etc.24a lot of which would include expression protected by the First Amendment.
Just because many states have a crime called harassment, it does not follow that every
reference to harassment is a reference to criminal harassment.
However assuming that these two claimsthat the Plaintiff produced child pornography
or harassed Mr. Hogeare to be interpreted as constituting potential defamation per se,25 the
Plaintiff has still failed to allege what was necessary to entitle him to recovery. The Plaintiff
appears to think that once something is determined to be defamation per se, that damages are
automatic. This is contradicted by the Supreme Courts holding in Gertz, 428 U.S. at 349, that
States may not permit recovery of presumed or punitive damages, at least when liability is not
based on a showing of knowledge of falsity or reckless disregard for the truth. In other words,
one cannot recover presumed damages without establishing constitutional malice. As stated by
the Wisconsin Supreme Court in Denny v. Mertz, 106 Wis.2d 636, 318 N.W.2d 141 (Wis. 1982),

24

Websters New World College Dictionary 613 (Victoria Neufeldt, 3rd ed. 1996).
This also assumes that the Plaintiff actually alleged all of these claims were false, see supra, p.
12.
25

18
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Presumed or punitive damages may only be awarded upon proof that [the defendant] acted
with actual malice. As noted above, supra, pp. 12-15, the Plaintiff makes no proper allegation
of the mental state of either of these Defendants in the Complaint; indeed, he does not make any
improper, conclusory allegation that they acted negligently, let alone with malice. Having failed
to properly allege malice, presumed damages are not available.
Therefore, the Plaintiff has failed to properly allege damages. He has not properly
alleged that he suffered actual damages, and he has not properly invoked the presumption of
damages associated with defamation per se. Specifically, he has not properly alleged that the
Defendants were accusing him of criminal conduct, and the Plaintiff has not properly alleged
malice. Without a proper allegation of damages and without properly invoking the presumption
of damages, the Plaintiff has failed to state a claim for defamation.
E.

The Allegedly Defamatory Claims Made About the Plaintiff are True, Substantially
True, or Constitutionally Protected Opinions.
A final difficulty with the Plaintiffs defamation claim is that even if the Plaintiff had

properly alleged that the statements the Defendants allegedly made were false, this Court can
findeven on a motion to dismiss basisthat the statements at issue were either 1) true, 2)
substantially true, or 3) constitutionally protected expressions of opinion.
First, whether the Plaintiffs skitsattached to the FAC as Exhibits 1-3 (Docket
Numbers 6-2 through 6-4) were child pornography is a matter of opinion and, as such,
expressing such an opinion cannot be actionable. As stated in Gertz, 428 U.S. at 339-340:
Under the First Amendment there is no such thing as a false idea. However
pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas.

19
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 19 of 28 Document 40

As noted above, supra, 16-17, the most natural reading of the claim that the Plaintiff had created
child pornography is not an assertion that he had violated the U.S. Code, but rather that he had
created pornographydefined by Websters Dictionary in relevant part as writings, pictures,
etc. intended to primarily to arouse sexual desire26involving or about children. In common
discourse what constitutes pornography is largely a matter of
opinion. Some consider the Sports Illustrated Swimsuit Issue to be
pornographic.27 Others label arguably artistic works from famed
French Director Luc Besson28 or from Stephen King as child
pornography.29

The forgettable mid-nineties thriller The Crush

about a fourteen year old girl sexually obsessed with an adult


prompted Hal Hinson of THE WASHINGTON POST to ask if the movie
was thinly disguised kiddie porn or just flat-out kiddie porn?30
Yet, upon information and belief, no one involved in the making or sale of that film were
arrested. Even a cover for the novel LOLITA (pictured right), has been called child porn by some,
26

Websters New World College Dictionary 1051 (Victoria Neufeldt, 3rd ed. 1996).
Monica Cole, This Year's Disgraceful Sports Illustrated Swimsuit Issue, THE STAND, Feb. 6,
2015, available at http://www.afa.net/the-stand/the-culture-war/this-years-disgraceful-sportsillustrated-swimsuit-issue/ (calling the Sports Illustrated Swimsuit issue soft core pornography)
and Aly Weisman, People Are Not Happy With the Racy Sports Illustrated Swimsuit Issue Cover,
BUSINESS INSIDER, Feb. 9, 2015 (In an UsWeekly poll, 68% of readers thought the cover image
resembled porn, while 38% found it so hot!which notably means some people said it was
both).
28
Susan Hayward, LUC BESSON 65 (1998) (discussing the controversy surrounding the movie
Leon: The Professional, featuring romance between a middle aged man and a twelve-year-old
[played by a young Natalie Portman], and labeled by some as quasi-child pornography).
29
Scott Elizabeth Baird, Famous Books with Filthy Sex Scenes (That Were Unfilmable),
CRACKED, March 23, 2016 available at http://www.cracked.com/article_23650_5-famous-bookswith-sex-scenes-way-too-intense-movies.html (describing a sex scene involving sixth graders in
one of Stephen Kings novels, Stephen King, IT (1990), as child pornography).
30
Hal Hinson, Movie Review: The Crush, WASHINGTON POST , April 5, 1993, available at
http://www.washingtonpost.com/wp-srv/style/longterm/movies/videos/thecrushrhinson_a0a80d.
htm.
27

20
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 20 of 28 Document 40

even though the sexuality was at an innuendo level only.31 Whether this Court is offended by the
Plaintiffs skitswhich describe in detail sexual conduct among children including forcible and
statutory rapeis beside the point. Whether something is offensive or not is a matter of opinion,
and Mr. Johnson is entitled to the opinion that the Plaintiffs skits are offensive, to believe that
the Plaintiff has created porn and because it involves or depicts children, that it is child
pornography.
Further, even if one accepted the Plaintiffs conclusory assertion that Mr. Johnson had to
be referring to criminal child pornography, there is no good reason to assume that Mr. Johnson
was alleging a violation of the U.S. Code. For instance, in FAC 14, the Plaintiff states that the
skits attached to his FAC as Exhibits 1-3 were created in 2013. That would be about two years
before he moved from Maryland to Wisconsin. FAC 1. Like many states, Maryland has a law
against child pornography, MD CODE Crim. L. 11-207, which reads in relevant part as follows:
11-207. Child pornography
(a)

Prohibited. -- A person may not:


(1)

cause, induce, solicit, or knowingly allow a minor to


engage as a subject in the production of obscene matter or a
visual representation or performance that depicts a minor
engaged as a subject in sadomasochistic abuse or sexual
conduct;

(2)

photograph or film a minor engaging in an obscene act,


sadomasochistic abuse, or sexual conduct;

(3)

use a computer to depict or describe a minor engaging in an


obscene act, sadomasochistic abuse, or sexual conduct;

31

Sam Jackson, 8 Massive Disasters in Marketing No One Noticed, CRACKED, Feb. 20, 2016
available at http://www.cracked.com/article_23664_8-brands-who-shot-themselves-in-foot-andkept-shooting.html (referring to the cover of one edition of Vladamir Nabokov, LOLITA (1955) as
being practically child porn).
21
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(4)

knowingly promote, advertise, solicit, distribute, or possess


with the intent to distribute any matter, visual
representation, or performance:
(i)

that depicts a minor engaged as a subject in


sadomasochistic abuse or sexual conduct; or

(ii)

in a manner that reflects the belief, or that is


intended to cause another to believe, that the matter,
visual representation, or performance depicts a
minor engaged as a subject of sadomasochistic
abuse or sexual conduct; or

(5)

use a computer to knowingly compile, enter,


transmit, make, print, publish, reproduce, cause,
allow, buy, sell, receive, exchange, or disseminate
any notice, statement, advertisement, or minors
name, telephone number, place of residence,
physical characteristics, or other descriptive or
identifying information for the purpose of engaging
in, facilitating, encouraging, offering, or soliciting
unlawful sadomasochistic abuse or sexual conduct
of or with a minor.

So on the face of the FAC the Plaintiff admits that he has knowingly ... possess[ed] with the
intent to distribute any matter ... that depicts a minor engaged as a subject in ... sexual conduct
in violation of subsection (a)(4)(i). That is, the Plaintiff did possess the material, he intended to
distribute it,32 and it depicts minors engaged in sexual conduct.33 Likewise, if the Plaintiff used a
computer to produce or transmit this materialand Exhibit G34 suggests he did via website while
in Marylandthat would be the use a computer to depict or describe a minor engaging in ...

32

Two of the skits, Like Sheep to the Ravenouse Homosexual Wolves and Fingernnails
Reeking of Poo, are available on iTunes, while the third, Rick Perry Discusses his Days as a
Boy Scout, is available at http://billschmalfeldt.bandcamp.com/track/rick-perry-discusses-hisdays-as-a-boy-scout.
33
Even if, as Plaintiff avers, no actual minors were involved, it is still a depiction of minors
engaged in sexual activity.
34
Exhibit G is a print out from a Google search, indicating the dates upon which the Rick Perry
skit appeared on the Internet, including dates from before he moved from Maryland to
Wisconsin.
22
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 22 of 28 Document 40

sexual conduct in violation of subsection (a)(3). That may not fit the Federal definition of child
porn, but it does appear to fit the definition found in the criminal law of the state where the
Plaintiff lived when he admitted that he created these skits. In short, if Mr. Johnsons alleged
comments are interpreted as speaking colloquially and not giving a legal opinion, it is a protected
opinion; if it is interpreted as accusing the Plaintiff of a crime, it would appear to be true.
Meanwhile the fact that Mr. Schmalfeldt created something that Johnson allegedly
characterized as raping little boy scouts sex audio recordings seems obviously true. Exhibit 1
to the FAC depicts a young boy scout being coerced into sexual relations. Meanwhile, in
Exhibit 3, the Plaintiff depicts former Texas Governor and Presidential candidate Rick Perry as
witnessing an apparent forcible rape of a child35 as follows:
Well, our scoutmaster didnt stand for that kind of stuff. He took that young man
back to his tent and when he came out he was crying and in holding down the his
[sic] backside like he had been whupped in the britches real good. Never did see
that kid again. Matter of fact we never saw that scoutmaster again neither.
The obvious implication of that passage was that the scoutmaster raped the young man violently
enough to cause lasting physical pain. Certainly, Exhibit 2 doesnt mince words on the subject
of child rape, as the Plaintiffs character describes the proper way a young boy should be raised:
Send your children to a nice Christian Academy where they will be shaped into
men by other men who know how to deal with young boys with discipline and
firm, rugged manliness, where boys live with other boys like in the rowing
galleries on Grecian warships. And they [sic] only thing they will ever know is
the sting of the taskmasters whip. And the burn of dirty sweat in heir [sic] eyes
and the constant pounding of the drums. And they will learn to HATE the
homosexual lifestyle as the fierce disciplinarians take them and rape them over
and over again while beating them[.] And forcing them to rape each other while
they watch and drink beer[.]
(emphasis added).

35

Further, any sex with a child is commonly referred to as statutory rape.


23
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 23 of 28 Document 40

The Plaintiff might argue that Exhibit 2 is irrelevant to the truth or falsity of the claim
because that involves children at a Christian Academy rather than Boy Scouts. However, the
doctrine of substantial truth allows for slight inaccuracies.

As stated by the Wisconsin

Supreme Court in Lathan v. Journal Co., 30 Wis.2d 146, 158 (1966):


Truth is a complete defense to a libel action. Williams v. Journal Co. (1933), 211
Wis. 362, 370, 247 N.W. 435. Nor is it necessary that the article or statement in
question be true in every particular. All that is required is that the statement be
substantially true. Meier v. Meurer (1959), 8 Wis.2d 24, 29, 98 N.W.2d 411;
Smith v. Journal Co. (1955), 271 Wis. 384, 389, 73 N.W.2d 429.
It is not necessary to prove the literal truth of the precise statement
made. Slight inaccuracies of expression are immaterial provided
that the defamatory charge is true in substance. Restatement, 3
Torts, p. 218, sec. 582.
In Global Relief Foundation v. New York Times, 390 F.3d 973, 980 (7th Cir. 2004), the Seventh
Circuit noted that [t]o establish the defense of substantial truth, the defendant need only show
the truth of the gist or sting of the defamatory material. The gist or sting of the
accusation was that the Plaintiff made recordings depicting the rape of children.

That is

undeniably true on the face of the FAC and its exhibits.


Turning next to the suggestion that Mrs. Palmer defamed the Plaintiff by suggesting that
he had harassed Mr. Hoge, that is simply true. Attached as Exhibit H is a true and correct copy
of a pair of peace orders obtained by Mr. Hoge against Mr. Schmalfeldt in Maryland.36 In each,
the ground listed for issuing that Peace Order is Harassment. Thus, the Plaintiff is collaterally
estopped from denying that he harassed Mr. Hoge.
Finally, the Plaintiff suggests that Mrs. Palmer defamed him by saying that the late Gail
Schmalfeldt BEGGED [the Plaintiff] to stop harassing WJJ Hoge and to let it go. BEGGED
HIM! AND HE REFUSED TO! The article where this line occurred has already been attached
36

A certified copy is on file in case the documents authenticity comes into question.
24
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 24 of 28 Document 40

as Exhibit F, and this Court can see that all of it was a response to a piece the Plaintiff wrote
called Did The W.J.J. Hoge Cult Of Personality Kill My Wife? that was originally located at
http://thepontificator.com/2016/01/15/did-the-w-j-j-hoge-cult-of-personality-kill-my-wife/.

true and correct copy of the piece is attached as Exhibit I.


This gives rise to two defenses. First, in context it is plain that Mrs. Palmers alleged
statement were made as commentary about the Plaintiffs article, linking to it in her piece and
then commenting on it. As such, this constitutes an opinion based on disclosed facts which
cannot give rise to a defamation claim. See supra, note 12.
Second, it gives rise to the defense of substantial truth. The Plaintiffs article referred to
by the Defendant details how he was found to have harassed Mr. Hoge in a court of law resulting
in a Peace Order,37 and how Mr. Hoge filed repeated charges claiming that the Plaintiff had
violated that Peace Order. Exhibit I, p. 3. It goes on to detail how the Plaintiff filed a civil suit
against Mr. Hoge and others for various torts and how Mr. Hoge sued the Plaintiff for alleged
copyright infringement. Id., p. 4. Finally, the Plaintiff and Mr. Hoge appeared to settle things in
May, 2014. Id., p. 4. Then, the Plaintiff writes the following about his late wife:
It was about this time that Gails weightloss [sic] was becoming noticeable. She
was starting to lose her balance as well. She made me promise her that when the
Copyright suit with Hoge was over, I would have nothing to do with the man. She
told me the stress of worrying about me and the worsening of my Parkinsons
disease was more than she could bear.
Id., p. 5. In short, she requested that he leave Mr. Hoge alone. Further, if one continues to read
the Plaintiffs obviously biased piece, one will see by the Plaintiffs own writings he didnt leave

37

In Maryland law, a Peace Order is essentially a restraining order among people not in a
domestic relationship (broadly speaking). See, generally, MD. CODE Cts. & Jud. Proc. 3-1501,
et seq. One of the statutory bases of such an order is harassment under MD. CODE Crim. L. 3803. See, MD. CODE Cts. & Jud. Proc. 3-1501(a)(1) (vi) (establishing that a Peace Order can
be supported by harassment under Marylands criminal law).
25
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 25 of 28 Document 40

Mr. Hoge alone. While that is not precisely the same as saying the late Mrs. Schmalfeldt begged
him to stop harassing Mr. Hoge, but the gist or sting of Mrs. Palmers statementsthat Gail
Schmalfeldt asked him to leave Mr. Hoge alone and he refusedare substantially true according
to the Plaintiffs own words.
Thus, in every instance where the Defendants allegedly said anything about the Plaintiff
at all, their alleged statements are either true, substantially true, or protected opinion. Therefore,
for this reason as well, the Plaintiff has failed to state a claim for defamation per se or per quod.
IV.
THE PLAINTIFF HAS FAILED TO PROPERLY SERVE THE DEFENDANTS WITHIN
90 DAYS AFTER THE ORIGINAL COMPLAINT WAS FILED, JUSTIFYING
DISMISSAL UNDER RULE 4(M)
The final reason to dismiss this case is one of the simplest. Under Fed. R. Civ. P. 4(m) a
Plaintiff is required to serve every defendant within ninety days of filing the original complaint.
This lawsuit was filed on December 28, 2015. The ninetieth day was on March 18, 2016, nearly
four weeks ago. The declarations of Mrs. Palmer and Mr. Johnson that were attached to the
original motion to dismiss establish that they were never properly served in this case because the
Plaintiff served an inoperative complaint on them. The new declarations of Mrs. Palmer and Mr.
Johnson (attached to this memorandum as Exhibits J and K respectively) establish that they still
have not been properly served at any time since. In fact, the Plaintiff has not made any
additional attempt to serve them. Accordingly, this case can be dismissed under Rule 4(m).
CONCLUSION
This is a case that should not have been brought. As noted in the original motion to
dismiss, there is no subject matter jurisdiction, there is no personal jurisdiction, and these
Defendants have never been properly served.

26
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 26 of 28 Document 40

Further, as noted in this supplement, the Plaintiff has not stated a claim for which relief
can be granted. The Plaintiff has alleged a cause of action that does not exist in Wisconsin law:
false light. Meanwhile, he has attempted to use a claim for misappropriation of name or likeness
to accomplish what the law forbidsthe shutting down of news, satire and commentary he
doesnt likeamong the many errors he made when alleging that claim. Additionally, he has
made a legion of errors when attempting to allege defamation, often citing statements that are not
about him, often failing to allege falsity, always failing to allege negligence or malice, and
always failing to properly allege damages. Further, the few statements that appear to be about
him also appear to be true, substantially true, or opinion, preventing recovery for defamation.
Finally, the Plaintiff hasnt served these Defendants on a timely basis, justifying dismissal under
Rule 4(m). Any one of these reasonswant of subject matter jurisdiction, want of personal
jurisdiction, insufficient service of process, failure to provide timely service of process and
failure to state a claimis sufficient by itself to justify dismissal. The Defendants respectfully
ask that the court find that all of these grounds are applicable, so that this case can be decisively
concluded, and so that the Plaintiff can finally understand the rules of jurisdiction and the law of
freedom of expression.

WHEREFORE, this Court should dismiss the FAC for all defendants based on a lack of subject
matter under Rule 12(b)(1); this Court should also dismiss the FAC for these Defendants for lack
of personal jurisdiction under Rule 12(b)(2); this Court should also dismiss the FAC for
insufficient service of process on these Defendants under Rule (b)(4) or (5); this Court should
also dismiss the FAC for these Defendants because the FAC fails to state a claim upon which
relief can be granted under Rule 12(b)(6); this Court should also dismiss for failure to timely

27
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 27 of 28 Document 40

serve these Defendants under Rule 4(m); and this Court should provide any other relief that is
just and equitable.

Thursday, April 14, 2016

Respectfully submitted,
s/ Aaron J. Walker
Aaron J. Walker, Esq.
Attorney for Defendants Johnson and Palmer
Va Bar# 48882
DC Bar #481668
P.O. Box 3075
Manassas, Virginia 20108
(703) 216-0455
(No fax)
AaronJW1972@gmail.com

VERIFICATION
I, Aaron Walker, state under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct and that all exhibits are true and correct copies of
the originals.
Executed on Thursday, April 14, 2016.
s/ Aaron J. Walker

CERTIFICATE OF SERVICE
I certify that on Thursday, April 14, 2016, I served copies of this document on William
Schmalfeldt by email with his consent.
s/ Aaron J. Walker

28
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 28 of 28 Document 40

EXHIBIT A

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 11 Document 40-1

4/4/2016

GoodMorning,DUMBFUCK!TheThinkingMan'sZombie

The Thinking Man's Zombie


BRAAAAAAAAAINS!!!!

Good Morning, DUMBFUCK!


Websters sez:
demand vb: to make a demand : ASK transitive 1 : to ask or call for with
authority : claim as due or just [demandedto see a lawyer] 2 :to call for
urgently, peremptorily, or insistently [demanded that the rioters disperse] 3 a
: to ask authoritatively or earnestly to be informed of b: to require to come :
SUMMON 4 : to call for as useful or necessary
DEMAND implies peremptoriness and insistence and the right to make
requests that are to be regarded as commands.

Give me Krendler. Otherwise, my lawyers investigation team will take


over from here.
To ask authoritatively or earnestly to be informed of?
Do you want to lose your livelihood to protect Krendler? That is what it will
come to. That is not a threat. That is a statement of fact.
To call for urgently, peremptorily, or insistently?
You can help yourself immensely by telling me when you sent the photo to
Krendler, why you sent it, and what Krendlers real name is.
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 2 of 11 Document 40-1

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GoodMorning,DUMBFUCK!TheThinkingMan'sZombie

To ask or call for with authority : claim as due or just?


Not a demand?
It is to laugh.
Ha. Ha. And MOTHERFUCKING HA!

And DUMBFUCK will have to look up peremptory for itself.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 3 of 11 Document 40-1

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Author: Paul Krendler


The Thinking Man's Zombie View all posts by Paul Krendler

Paul Krendler / September 28, 2015 / Adjudicated Cyberharasser, Adjudicated


Cyberstalker, Commentary, Consequences, DERP, DUMBFUCK, F5F5F5F5, Feldtdown, FUN,
Impulse Control, Life Skills, Mockery, Monkey Dance, Reputation Management, Self Awareness
FAIL, The Cray

21 thoughts on Good Morning, DUMBFUCK!

Dave Alexander (formerly ukuleledave)


September 28, 2015 at 7:04 am

Well done sir.


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Rob Crawford
September 28, 2015 at 7:17 am

Has anyone identi ed the lawyer he's working with? You know, the guy with
an investigative team willing to work for old mayo jars, but not able to
compose a simple letter?
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Paul Krendler
September 28, 2015 at 7:21 am

I believe his name is Mark N. Maryland of the ACME Law Group. However, I
have been unable to

nd where he has been admitted to the bar.

Does anyone know the web addresses for the Bar Associations in the states
of Drunkenness and Delusional?
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Rob Crawford
September 28, 2015 at 11:19 am

The only bar he's been admitted to is the Dew Drop Inn.
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Bob

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 5 of 11 Document 40-1

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4/4/2016

GoodMorning,DUMBFUCK!TheThinkingMan'sZombie

September 28, 2015 at 2:19 pm

Bill's favorite bar is The Blue Oyster. He likes to visit his pals Mauser and
Proctor.
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(0)

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BusPassO

(0)

ce

September 28, 2015 at 7:24 am

It maybe the guy who tied up those boy scouts and raped them repeatedly
as described in his last unsold album that no one except a judge and a jury
are going to listen too.
Nice touch about peeing on them, classy and pornographic kiddie rape
fantasies.
wonder how that's going to play in court with three raping boyscout
fantasies now produced?
It has been sent to Vanderbilt, the NHS and will soon be sent to a senior
rent assisted apartment complex management and their Milwaukee law
rm.
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(0)

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(0)

The 13th Duke of Wymbourne


September 28, 2015 at 8:22 am

"Has anyone identi ed the lawyer hes working with?"


Case 2:15-cv-01516-NJ Filed 04/14/16 Page 6 of 11 Document 40-1

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GoodMorning,DUMBFUCK!TheThinkingMan'sZombie

Walker Neat & Quick, I believe.


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(0)

Roy Schmalfeldt
September 28, 2015 at 10:57 am

Huh, I thought he was using J. W. Red...


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(0)

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(0)

This Other Latin F*cker


September 28, 2015 at 9:11 am

RogerS seems to be the legal scholar of TK. Of course that sock has gotten
every single prediction wrong.
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(0)

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(0)

Vigilans Vindex (@VigilansVindex)


September 28, 2015 at 7:24 am

We'll just recycle these ...


http://kimberlinunmask.com/ les/shopping.jpg
http://kimberlinunmask.com/ les/mrbilledits.jpg
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(0)

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(0)

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 7 of 11 Document 40-1

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GoodMorning,DUMBFUCK!TheThinkingMan'sZombie

Loren
September 28, 2015 at 9:28 am

But he swore that Krendler was Grady! And his very good friend swears that
Krendler is Hoge.
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(0)

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(0)

Neal N. Bob
September 28, 2015 at 10:35 am

It has always been my understanding that one engages an attorney to do


one's communicating for him. The "Do this or Imma sic my lawyer on you" is
an ... interesting approach. Or a very poorly crafted lie.
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(0)

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(0)

Paul Krendler
September 28, 2015 at 10:46 am

Embrace the power of "AND"


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(0)

The Dread Pirate Zombie


September 28, 2015 at 11:05 am

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 8 of 11 Document 40-1

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GoodMorning,DUMBFUCK!TheThinkingMan'sZombie

Makes me wonder....
Is there anyone AT ALL who has EVER heard from "Bill's Lawyer"?
Somehow, I think the answer is a big, fat NO. SMH
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MJ
September 28, 2015 at 11:13 am

My guess is he's engaged several attorneys, all who have probably told him
to go fuck himself in a professional manner.
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(0)

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(0)

Paul Krendler
September 28, 2015 at 11:25 am

How does one do that? Would I need to wear a suit and tie?
Like

(0)

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(0)

slp
September 28, 2015 at 1:35 pm

"This is a really complicated case. I am going to need $100,000 as a


retainer."

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GoodMorning,DUMBFUCK!TheThinkingMan'sZombie

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Je M
September 28, 2015 at 12:54 pm

Just the tie (for a male). For a female, I think it is heels.


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Wisconsin Bound
September 28, 2015 at 8:05 pm

Since none of us know exactly who PK is and therefore he could be a


female, are you saying that he should accost BS dressed only in a tie and
heels?
The eye bleach is on aisle 4
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(0)

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(0)

Roy Schmalfeldt
September 28, 2015 at 10:17 pm

Not true. Several of us know who Krendler is IRL.


I've even gone so far as to PROVE that I know. Krendler validated that I
knew, in front of everyone.

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4/4/2016

GoodMorning,DUMBFUCK!TheThinkingMan'sZombie

Cousin Bill, of course, lacks the smarts to


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(0)

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gure it out...

(0)

Howard D. Earl
September 28, 2015 at 1:19 pm

This technique MUST have worked at least once in this miserable


cocksucker's life.Why else would he continue to employ it?
Make me a dirty schnitzel or I'll blacken your eye(s).
Deliver this

ling to the post o

ce or you'll not get your kidney meds.

Treat my carbuncles or you cannot have any of my Johnny Walker Red.


It puts the lotion on its skin or it gets the hose.
Like

(0)

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(0)

The Thinking Man's Zombie / Proudly powered by WordPress

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 11 of 11 Document 40-1

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EXHIBIT B

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 7 Document 40-2

4/4/2016

TeamKimberlinPostoftheDay|hogewash

hogewash
Neverpickafightwithamanwhobuyspixelsbytheterabyte.

TeamKimberlinPostoftheDay
Postedon29September,2015

32

RateThis

ThedocketonPACERdoesnotshowthatanyoppositiontomymotiontodismissforfailure
tostateaclaimhasbeenfiledintheKimberlinv.TeamThemis,etal.RICO2:Electric
Boogaloo.GiventhatthedeadlineforfilinganyoppositionwaslastFriday,itappearsthatthe
motionisnowunopposed.
Staytuned.

SH A R ETH IS:
Twitter

Facebook

Reblog

Like

LinkedIn 1

Email

Print

More

Bethefirsttolikethis.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 2 of 7 Document 40-2

http://hogewash.com/2015/09/29/teamkimberlinpostoftheday933/

1/6

4/4/2016

TeamKimberlinPostoftheDay|hogewash

R ELATED

TeamKimberlinPostof
theDay
In"Lawfare"

RICO2:Electric
BoogalooNews
In"Lawfare"

RICO2:Electric
BoogalooNews
In"Lawfare"

ThisentrywaspostedinLawfare,TeamKimberlin,TrollsandtaggedBrettKimberlin,
DreadProSeKimberlin,RICO2ElectricBoogaloobywjjhoge.Bookmarkthe
permalink[http://hogewash.com/2015/09/29/teamkimberlinpostoftheday933/].
11THOUGHTSONTEAMKIMBERLINPOSTOFTHEDAY

MJ
on29September,2015at00:27said:

12

RateThis

BetitwasmailedonSaturday.

JeffM
on29September,2015at01:52said:

11

RateThis

Whateverdayitwasmailed(ifitwas),Ibetitsnonsense.

scrubones
on29September,2015at04:59said:

RateThis

Ialsobetthemoonwillcontinuetoorbittheearth,andthegoverment
willkeepdemandingwepaytaxes,andsomeone,somewherewilldie
tomorrow.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 3 of 7 Document 40-2

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2/6

4/4/2016

TeamKimberlinPostoftheDay|hogewash

BusPassOffice
on29September,2015at05:33said:

10

RateThis

ourfavoriteaboveitallisrapingmoreboyscoutsinaudiofantasies,thank
aboveit
goodnessheactuallyadmitsit
OhandhesharassingLynnThomasfromhisrentassistedseniorhomeandeverone
sentthistothemanagement:
@dirtyschnitzel
Now,canYOUthinkofthingsIdidthatIdidntdoandthuswasnevercaughtdoing?
WhoevermakesthebestlistgetsfreeDirtySchnitzel
DirtySchnitzel@dirtyschnitzel
filthymindedEricJohnsonsfeverdreamaboutcubscoutrapetapes.Somuch
evil.Iwasinconfessionalforthreeweekswithoutrest.
DirtySchnitzel@dirtyschnitzel
takekidsawayfromdrunkchickwhowasboinkingmenotherthanherhubbyin
frontofthekids,nottomentionwhollyfabricatedinthe..
DirtySchnitzel@dirtyschnitzel
EachoneoftheseconfessionsisastrueasthecommonlyacceptedBreitbotmemes
aboutmytorturingabereavedfather,threateningto
DirtySchnitzel@dirtyschnitzel
1.Savedaweeksworthoffartsinacloset.NabbedLynnThomas.Lockedherinfor
3days.Causedneckdeformity.pic.twitter.com/J9zSvQejHl
ViewimageonTwitter
DirtySchnitzel@dirtyschnitzel
2.IshookthebabyandblameditonZombiePiratePrincessPonySparkles

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 4 of 7 Document 40-2

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TeamKimberlinPostoftheDay|hogewash

daughter.#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel
3.IsoldthedrugstotheGaelicfellowthatcausedhissontohaveabirthdefect.On
purpose.#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel
4.Relatedto5,soldthekidsformedicalexperiments.Keptallthemoneyformyself.
#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel
5.RememberthatguyinDallaswholiedaboutarapethreatInevermade?Hiswife
ishidinginmycloset.#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel
6.Leftacoolbowlofantifreezeonahotsummerdayatadogkennelin
Massachusetts.#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel
7.StoodoutsideWJJHogesbedroomwindowformonths,dressedastheGrim
Reaper.Keptpointingathiswife.#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel
8.Dugupadeadbabytotormentitsfather.Turnsoutitwasthewrongbaby.
Tormentedanyway.#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel
9.TookachildfromadrunkchickinWisconsin,soldittogypsies.Boughtagold
chain.#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel
10.GaveaThreeStoogeseyepoketothepope.Toldhim,picktwo,andhedid.
BOY,washemad.#thingsIgotawaywith
DirtySchnitzel@dirtyschnitzel

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 5 of 7 Document 40-2

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4/4/2016

TeamKimberlinPostoftheDay|hogewash

AslongasthevariousRWliesarestillbeingtoldandbelieved,letsmakealistof
thehorriblethingsIdidandwasnevercaughtdoing!

AReader#1
on29September,2015at06:57said:

RateThis

Oh?KobayashiMaru?So,hesgoingtolie?Folks,BSistestrunninghis
argumentstoseewhichliesplaythebest,sodonteducatehim.
https://web.archive.org/web/20150929105314/http://Dirtyschnitzel.com

AvengerWatcher
on29September,2015at07:41said:

RateThis

TheKobayashiMaruisintentionallyanowinscenario.Whatever
youdo,youcannotwin.
Unlessyoulieandcheat.

RoySchmalfeldt(formerlyLeroyOddswatch)
on29September,2015at08:42said:

RateThis

Rightinhiswheelhouse,then.

Dr_Mike
on29September,2015at17:30said:

RateThis

HopefullyhischeatwillbeRussianRoulette,withasemiauto.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 6 of 7 Document 40-2

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TeamKimberlinPostoftheDay|hogewash

AReader#1
on29September,2015at06:44said:

12

RateThis

But,but,THEREWASAREDMOON!

PaulKrendler
on29September,2015at08:11said:

11

RateThis

DidhesitonthehotstoveAGAIN?!?

Pingback:IMEANTTODOTHAT!|TheThinkingMan'sZombie

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 7 of 7 Document 40-2

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EXHIBIT C

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 9 Document 40-3

4/4/2016

So,LemmieGetThisStraightHere|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

BILLYSEZTheBillSchmalfeldtFeldtdownObserver
"AllthatisnecessarytodiscreditBill
Schmalfeldt,istoquoteBillSchmalfeldt"
R.S.McCain

So,LemmieGetThisStraightHere
PostedonOctober14,2015byTheDreadPirateZombie

BiwwwyycantbebotheredtohiehimselftoMassachussetstodefendhimselfagainstchargesofharassmentwhen
heDIRECTLYemailedand/orcalledsomeoneathomeaftertheyrepeatedlytoldhimnottodoit.
email
BUT!
HeisMOREthanhappytotraveltoMaryland(ItsforSTALKERS!)inordertotestifyagainstsomeonewhohe
claimsharassedhimbypostinganegativeopinionabouthimonawebsitethathedoesnotown,thathegoesto
voluntarilyofhisownfreewill.
Mmmmkay.

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2bloggerslikethis.

AboutTheDreadPirateZombie
MemberoftheZombieHordeandLickspittleMinion.Outtoeatyourbrainnnsssss.Andafewothersweetbreadsbecausethey
aresonommy.Beafraid.Beveryafraid.
ViewallpostsbyTheDreadPirateZombie

ThisentrywaspostedinUncategorized.Bookmarkthepermalink.

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29ResponsestoSo,LemmieGetThisStraightHere
HowardD.Earlsays:
October14,2015at7:59am

Moreemptythreatsfromanemptyskull.
Likedby1person
Reply

BusPassOfficesays:
October14,2015at10:24am

OhhemaybetravelingtoMaryland,butnotforthestatedreasons
Likedby2people
Reply

MJsays:
October14,2015at2:24pm

HastheSheriffcomeoverandverballyadmonishedyouforbeingabadboyyet?
Likedby1person
Reply

BusPassOfficesays:
October14,2015at8:14pm

Iminacolddarkplace,IdontwanttotellyouallwhatIhadtodotogetinternetaccess..
Like
Reply

DirtySchnitzel(@dirtyschnitzel)says:
October14,2015at12:04pm

Eric,youwouldbewelladvisedtokeepyouryapshutuntiltheDAdecideswhattodowithyou.
Asfarasthemainquestion,beforeIdidnthavethefare.Now,Ido.
Like
Reply

RobCrawfordsays:
October14,2015at12:31pm

AndyouSTILLwouldntshowup.YouwereanoshowformultiplehearingsinMarylandWHENYOULIVED
THERE.
Stoplying,stopreadingsitesthatgiveyoubutthurt,andstopharassingpeople.

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Likedby6people

Reply

TechnoJinxxsays:
October14,2015at12:32pm

Bill,youshouldtakeyourownadvice.
Likedby4people
Reply

PaulKrendlersays:
October14,2015at1:54pm

DANCE,YOUDUMBFUCKMONKEY!DANCE,ISAY!
Likedby5people
Reply

MJsays:
October14,2015at2:26pm

Whathemeansis,hehasaplacetostayforthedurationthathasagoodinternetconnectionsohecancontinueto
poundontheF5key.Assumingofcourse,TJhasntsoldthehouse.
Likedby1person
Reply

HowardD.Earlsays:
October14,2015at5:08pm

Shutyourfuckingcockholsterandgohaveadrink,makesomekiddypornandprepareforyourinevitable,weekly
shaming.
Youfuckingclown.
Likedby3people
Reply

Toastridersays:
October15,2015at3:40pm

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 4 of 9 Document 40-3

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Like
Reply

agiledogsays:
October14,2015at2:47pm

Billysez:
IamnotphysicallyabletohopontoaplaneandflyfromWisconsintoMassachusetts.
However,Iamphysicallyunabletotravelexceptinthemostextremecircumstances.
IhaveneitherthefundsnorthephysicalabilitytobeinCourtWednesday,
sinceIamdisabledandbothphysicallyandfinanciallyunabletotravel.
Hesaiditwasmostlyphysical,notfinancialforMA.HedidntLIE,didhe?
Likedby6people
Reply

Diannasays:
October14,2015at4:48pm

Hedbewelladvisedtohidehisheadinshame.
Likedby1person
Reply

RoySchmalfeldtsays:
October19,2015at7:48am

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 5 of 9 Document 40-3

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So,LemmieGetThisStraightHere|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

Hesnolongflexibleenough
Like
Reply

Russsays:
October14,2015at4:49pm

ItssocutehowhethinksButthurtintheFirstDegreeisacriminallyprosecuteableoffense.
Likedby3people
Reply

BusPassOfficesays:
October14,2015at8:11pm

NumberofchildrapesextapessenttoHenryCountyDAsofficebyPornographer:Three
NumberofchldrapesextapessenttoDAbyguywhoseopinionitsporn:0
Like
Reply

evilwillie00says:
October14,2015at11:03pm

BPO
Doyouhaveanyplanstoshowthemthemanyitemsyouhavefoundthataredisturbing?Howmanytimeshashe
contactedlawenforcementinhisvictimshomecityorcounty?Icanthinkof2justinthepast30days.Hehasbeen
atthisonlinecombatfordecadesandhashundred(s)ofvictimsinmyopinion.Sohowmanytimeshashisidiotic
legalstrategyofsendinghisevidencedirectlytolawenforcementresultedinchargesfiled?Andmoreimportantly
convictions?
Imguessingitsinthedoubledigits..00
Likedby2people
Reply

HowardD.Earlsays:
October15,2015at12:01am

Hesbeenclosetogettingmemanytimes.
Justkidding.
Likedby1person
Reply

BusPassOfficesays:
October15,2015at2:16am

AnydaynowIexpecttheAmazonFederalPolicetoberollingdownmy1/3miledriveway,overpowermy
security,stormthemaincabinandbeatmesenselessbecauseIthinkthatexplicitlyrics,orsexstoriesare
pornographicandusingthedepictionofsmallchildrenisreallyreallybad

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So,LemmieGetThisStraightHere|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

Yes,putmeinjail.
Likedby1person
Reply

JerryFletcher(@guntotingteabag)says:
October18,2015at10:36am

Rememberwhenheclaimedheemailedthreedifferentstatelawenforcementagenciesdemandingthey
email
investigateChrisHeatherinlate2014?Onlytofindoutmonthslaterhesbeenfaildoxingandharassingthe
wrongpersonandhisfamilyformonths?Ohdidweallsitbackandlaugh
OhandhaveIremindedeveryonethatsawChrisHeatherinNovember2014onelectionnightandtoldhim
whatBillhasbeenuptoandsenthimallthescreenshots,linksoftheharassment,defamation,andliable
fromBill?IncludingtheAmazonBooksthatcouldverywelllandBillincivilandcriminalcourt?Wisconsin
hasdefamationlawsdontchaknow IthinkIllemailhimandlethimknowBillisinWisconsin.
email
Likedby1person
Reply

JerryFletcher(@guntotingteabag)says:
October18,2015at10:39am

OhandImayormaynotbesittingonafewscreenshotsChrisHeathersentmeoftheharassment.Iamtryingto
decidewhatIshouldorshouldntdowiththat.IthinkIwillaskChriswhatshouldbedoneaboutitinmyemail.
email
Likedby1person
Reply

ThisOtherLatinF*ckersays:
October16,2015at10:54am

DearMommypolice,youneedtoprotectmefromthebigmeaniestellingthetruthaboutmebecauseImtotallydisabled.
ExceptwhenIwalk11/2miles,gotothegrocerystore,orchaseCubScouts.Damnthoselittlekidsarefast.DidImention
Imtotallydisabled?ThankyouMommy.
YourboyBill
Likedby2people
Reply

JeffMsays:
October18,2015at11:44am

AmItotakeitthatthelackofnewmaterialhereandatthezombiesiteisbecauseWilliehaswiggledbackunderhisrock
afterhismostrecenthumiliation?
Likedby1person
Reply

librarygryffonsays:
October18,2015at12:22pm

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 7 of 9 Document 40-3

https://billysez.wordpress.com/2015/10/14/solemmiegetthisstraighthere/

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4/4/2016

So,LemmieGetThisStraightHere|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

ProbablyacombinationofthatandtheHZICshavingfunIRLthisweekend.IratherwishIwasatanicelittlewar
too.
Likedby1person
Reply

TheDreadPirateZombiesays:
October19,2015at7:19am

Itwasavery,verynicelittlewar.1200peopleinattendance.AndtheSouthrosetowinovertheNorth!lol.
Well,theSouthernBaroniesovertheNorthernBaronies. Itwasallgood,andmuchfunwashadbyall.
Thepeepswereavenged!
Likedby2people
Reply

JerryFletcher(@guntotingteabag)says:
October18,2015at12:35pm

IhaveonesimplerequestforBwillysinceIknowheisreadingthese.ActuallyTWO.Theyrerathersimplehere.
1)IfyouregoingpostontwitteraboutthePackersatleastwatchthegameandgetthefinalscoreright.Theywonlastweek
2410Not2417.
PackSlamsRams2417https://t.co/LYQc1WO3SCvia@sharethis
DirtySchnitzel(@dirtyschnitzel)October11,2015
2)ifyouregoingtopostapredictionblogpostofyourfinalscoreofthegame.DOITBEFORETHEGAMENOTAFTER.
Thankyousomuch.
Like
Reply

BusPassOfficesays:
October18,2015at7:57pm

Jerry,
Tennesseehasmanylawsonthebooks,oneofwhichisbearingfalsewitness,hiscomplaintfollowedbyhistaunts,havegone
alongway,butnotinthedirectionheintended.
Likedby1person
Reply

BusPassOfficesays:
October19,2015at8:27am

Ifhereallysentthatemail,thenheconfessedtosendingmaterialthatcanbeconsideredchildpornaudio,ifhedidntsend
email
theemail,hedemonstratedthatitisorcanbeconsideredchildporn.
email

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So,LemmieGetThisStraightHere|BILLYSEZTheBillSchmalfeldtFeldtdownObserver
Like
Reply

MJsays:
October19,2015at10:46am

LetmeseeifIunderstandthis:HesentwhatcouldbeconsideredchildporntoTennesseelawenforcementofficials?
Thisisnotgoingtogooverwell.
Like
Reply

BILLYSEZTheBillSchmalfeldtFeldtdownObserver
TheTwentyTenTheme.

BlogatWordPress.com.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 9 of 9 Document 40-3

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8/8

EXHIBIT D

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 25 Document 40-4

4/4/2016

PleaseWelcomeOurNotSoNewStaffContributor!TheThinkingMan'sZombie

The Thinking Man's Zombie


BRAAAAAAAAAINS!!!!

Please Welcome Our Not-So-New


Staff Contributor!
We at The Thinking Mans Zombie are happy, nay PROUD to announce a
kinda-sorta-newaddition to our contributing sta.
Fresh o the triumphant release of the bestselling ctional memoir of his
epic troll of all you gullible weenies, please join us in welcoming back to the
fold the original Zombie, our founder, Bill Parvocampus.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 2 of 25 Document 40-4

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PleaseWelcomeOurNotSoNewStaffContributor!TheThinkingMan'sZombie

Given the warm response to his novel (now available at Amazon! no I wont
link to it, but if you must, put a shekel in Johns pocket by using his aliate
link), Bill decided that he likes writing ction and sought us out for a
platform. He had consideredleveraging his new position as the darling of
Team Kimberlin into a position at one of their blogs but decided hed rather
have an audience than friends. And he didnt want the responsibility of
running the place.
Were all undead here so it makes no dierence to us.
Bill will be working on his craft here, posting drafts of anecdotes and
chapters of his next novel, which he says is going to be a sweeping epic, a
multigenerational family saga like Alex Haleys Roots, only with Nazis instead
of slaves and bad opera instead of gospel.
I hope youll treat him with the respect he earns, but no more than that. If
he performs to expectations, I may let him have his own tip jar.
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Author: Paul Krendler


The Thinking Man's Zombie View all posts by Paul Krendler

Paul Krendler / October 28, 2015 / Staffing

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59 thoughts on Please Welcome Our Not-So-New


Staff Contributor!

A Reader #1
October 28, 2015 at 11:12 am

A warm welcome! Mr. Parvocampus, I hope you will consider havin question
and answer sessions from time to time - I have so many of them!
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wpdavidd
October 28, 2015 at 5:44 pm

Shouldn't that be Hippocampus? I mean, really.


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Howard D. Earl
October 28, 2015 at 11:12 am

Welcome, Bill.
Does being a zombie make you wish you'd thought the whole cremation
thing through?
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Howard D. Earl
October 28, 2015 at 11:13 am

FYI.
I don't apologize for anything.
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wpdavidd
October 28, 2015 at 5:50 pm

Like that old Captain & Tennille song, Zombie Love?


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Neal N. Bob
October 28, 2015 at 11:20 am

Oh, the amazing stories he'll tell!


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agiledog
October 28, 2015 at 11:20 am

Welcome back, Mr. Parvocampus. What do you think of the job we have done
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continuing on the ne work you started?


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Rob Crawford
October 28, 2015 at 11:25 am

He looks so alive!
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Neal N. Bob
October 28, 2015 at 11:27 am

The stupidity and spite keep him young!


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aposemat
October 28, 2015 at 11:29 am

What prompted you to come over to the other side? I'm looking forward to
your tell-all about the OTHER other side.
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lorddewclaw
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October 28, 2015 at 11:29 am

The rumours of Billy P's demise were not exaggerated....


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AJ Fornicarius Hoc
October 28, 2015 at 11:30 am

Welcome (back) to the Horde!


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This Other Latin F*cker


October 28, 2015 at 11:39 am

Hey Mr P, how did a far left liberal asshole like you end up working for the
esteemed Mr. Hoge? Did he pay well?
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wpdavidd
October 28, 2015 at 5:55 pm

Why would the esteemed Mr. Hoge hire a far left liberal asshole, anyway,
especially one who writes so poorly?
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Dr. Dan
October 28, 2015 at 11:40 am

Springtime for Hitler, as a title, may be taken, but I could be mistaken...


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wpdavidd
October 28, 2015 at 5:52 pm

Why should that stop a zombie?


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Howard D. Earl
October 28, 2015 at 11:45 am

"The corn cob is lubed, son"


The early Iowa days
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ce

October 28, 2015 at 12:01 pm

I understand that dirty long john underwear was the dress code for dinner
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Howard D. Earl
October 28, 2015 at 4:02 pm

Yes. The ap was important in Billy's young life.


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Canuckamuk (@canuckamuk)
October 28, 2015 at 11:56 am

Will we also soon be seeing guest columns as well from Mark in Marlyand?
As a lawyer actively practicing Acme law with the esteemed rm of Dewey,
Scruem, & Howe; his insights would be thoroughly below any conceivable
standards
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ce

October 28, 2015 at 11:59 am

Bill,
What do you wrap your scout scarf around?
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Pablo
October 28, 2015 at 12:00 pm

PARVOCAMPUS! I READ YOUR BOOK YOU MISERABLE BASTARD!!!


OK, I didn't really read it. I just like ring on Patton.
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Paul Krendler
October 28, 2015 at 12:03 pm

https://twitter.com/i94radio/status/659412166454476800
Really, DUMBFUCK? It took you 50 minutes to come up with THAT?
Some depths of idiocy cannot be reached by natural means...you had to dig a
long way to become this stupid.
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Neal N. Bob
October 28, 2015 at 12:05 pm

It's not just idiocy. You should credit the booze, too.
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Rob Crawford
October 28, 2015 at 12:48 pm

Asphyxiation? That can cause brain damage.


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Pablo
October 28, 2015 at 12:30 pm

How about his 5 star review of what he claims is John Hoge's book?

like it or not
By William M. Schmalfeldt on October 26, 2015
1 of 7 people found this review helpful
I only wish I had written this book. But I'm afraid that someone
much more clever than I am has been pranking a small but lthy
group of right wing extremists for over a year now. I purchased a
copy of the paperback, but it hasn't arrived yet. I have written
several books that are available for sale here on Amazon, but the
thing they all have in common is that they bear the name of the
author. This book does not bear my name. What's more, the person
who wrote it knew that this group of savages, who have spent the
last four months personally slandering the memory of my late wife
on the blog identied in this book, would be angry about being
shown for what they are. The writer sent me a copy of his or her
copyright ling with the US Copyright Oce. So, like it or not,
complaints or no complaints, the author of this book has the
copyrighted ownership of the material in this book and, if he or she
is to be believed, fooled this pack of foolish easily-fooled fools into
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thinking he or she was Paul Krendler. I sincerely hope this author


sells a ton of these, if for no other reason than to let people know
the lies they tell in their little Twitter and Bloggy Blog ame wars
CAN come back and bite them on the bottom. Congratulations,
"Anonymous." I look forward to reading the paperback. As a Prime
Member I have already started on the Kindle version.
Like anything you read on the Internet, take false comments like
those by "Doug" or "Bluelake" or "EPWJ" or whatever he's calling
himself these days with a grain of salt. If "Doug" is so sure I am the
author of this work, I would be happy to see the proof. Should be
easy enough, right?
Emphasis mine, of course.
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Minemyown
October 28, 2015 at 12:40 pm

He should read and review Amazon's TOS.


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Rob Crawford
October 28, 2015 at 12:51 pm

He should suck on a 12-gauge.


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Gustavo Fring
October 28, 2015 at 12:54 pm

It's so cute to see him telegraph his plan like this. If only he would will it
to be true! If only we would take the bait!
Is anyone actually upset that this book exists? I mean, it's just more
evidence of his DUMBFUCKERY even if you buy that the fail whale had
nothing to do with its provenance.
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Kyle Kiernan
October 28, 2015 at 1:36 pm

I did enjoy his display of the "copyright ling". It was his usual
incomplete, lacking many crucial details, easy to create online form that
he trots out and childishly expects everyone to accept without question.
Love to see what his mocked up excuse notes to his teacher were like in
school.
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Accipe remedium, Tremule!


October 28, 2015 at 2:09 pm

A copyright ling that only the ler could have accessed, clumsily
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explained away as having been received "via an anonymous email."


Suuuuuuuuure it was. And you didn't send the letter you sent because
the signature was too much like your others. Hahahahahaha. You're a
terrible liar.
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wpdavidd
October 28, 2015 at 6:00 pm

Hmmm. So he's not the author, but the author shared the copyright ling
with him. R-i-i-i-i-i-g-h-t.
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Minemyown
October 28, 2015 at 9:59 pm

At the time of this post his review and comments on other reviews of the
book are gone. as if they where never there. Good circumstantial evidence
that he uploaded the book to Amazon, they will not let an author review
his own book.
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Paul Krendler
October 28, 2015 at 10:00 pm

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Maybe he got a few down twinkles for his eorts.


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gmhowell
October 28, 2015 at 12:05 pm

Ugh. A tip jar for the tips of what?


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Dianna
October 28, 2015 at 2:13 pm

Fingers, usually.
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Paul Krendler
October 28, 2015 at 2:19 pm

Reminds me of a scene from the beginning of an old movie called


Darkman.
Bad guy "negotiating" with another bad guy, takes out a cigar cutter and
starts ticking o reasons why the other guy is going to give up his
business and clear out of town:

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One. (chops o a nger) I try to keep my temper.


Two. (chops o another) I don't always succeed.
Three. (chops o third nger) I'VE GOT SEVEN MORE REASONS.
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Central, ND
October 28, 2015 at 12:09 pm

Bill - may I call you Bill, Mr. Parvocampus?


Bill, someone from Arizona said that your dad... well, I don't want to be
crude, but he said your dad used to give BJ's in exchange for drinks. Knowing
your family, I assumed that this is true. If so, what was his referred
beverage?
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Dr_Mike
October 28, 2015 at 3:50 pm

Cum again?
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Tao
October 28, 2015 at 12:12 pm

Welcome aboard, Parvocampus!


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Is it true that your Navy nickname was "Swivel-Lips"?


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Howard D. Earl
October 28, 2015 at 12:16 pm

With a hinged jaw.


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Vigilans Vindex (@VigilansVindex)


October 28, 2015 at 12:49 pm

http://kimberlinunmask.com/les/sayings03.jpg
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ce

October 28, 2015 at 1:00 pm

Bill P
Do you know this guy: He is a creepy staking harassing child porn producer:
He violated the hatch act hundreds of times
He lied to people on XMfan who threatened to report it saying he had extra
super secret permission to do so
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He threatened to sue them


He graphically described the sex acts of his own daughter
He while his nephew was possibly in military service said his nephew was
giving oral sex to men
He graphically described how he would rape a kid for calling him a blue pill
popping old man
He insinuated that he was a federal ocial with some kind of arrest
authority
He threatened to ruin people by ling false charges with his friends at
Justice that is a crime BTW
He made a fake amazon account and wrote a review in my name
He has blatantly used my name in a fake review where he talks about digging
up a dead baby and assaulting the father with it, in front of the screaming
mother in the most gruesome of fashions
He most likely led false papers with the federal courts
It can be shown that he lied in a court ling under perjury in both State and
Federal Court that he never created child porn
He led knowingly false charges against Lee Stranahan, John, Me, and a host
of others
He claimed that he was going to own all our property
He made sexual comments about an underage girl sitting on her uncles lap
which is waiting for a complaint by the Racine Police Department.
He made false claims of abuse of Library Grions daughter
He threatened to send people to rape Lees wife
He made sex tapes of boy scouts soliciting the rape of children by his sick
friends who would be aroused by the content
He made a sex tape trying to sell underage girls and someones wife into sex
acts
He falsely accused Lees wife of prostitution
He threatened and abused women on DailyKos
He took the pictures of a wonderful child in Alaska and made totally
inappropriate comments
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He harassed and put a picture of a skull over a copyrighted picture of a


unrelated family in Arizona and then harassed both parents getting not one
but two restraining orders
He falsely accused me of leaving false reviews of his so called :books
He harassed and had unwanted contact with wife of a commentator gaining
him yet another restraining order
He was red from the examiner, and probably every other online periodical
for his twisted degenerate behavior outside of this forum community
He admitted to using illegal drugs with his stepson
He wrote that he colluded with his superior at the NIH to illegally try to get a
full disability pension by falsifying his performance evaluations
He deleted thousands upon thousands of pages of evidence to avoid
prosecution and or civil suits
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evilwillie00
October 28, 2015 at 1:01 pm

I think there needs to be some clearing of the air before we completely accept
this dude back. A lot of us have come aboard after Mr. Parvo quit and moved
on. I'm sure there are some who know him, but there are just as many who
don't. Who has some ideas on how Mr. Parvo can introduce himself to those
new to the horde? Q & A session? Free summary of his latest book?
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AJ Fornicarius Hoc
October 28, 2015 at 1:22 pm

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I get the impression that Bill P. is quite eager to tell us all about himself,
perhaps in a series of articles.
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Gus Bailey
October 28, 2015 at 2:43 pm

Well, let's just say there are fences to mend.


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samk
October 28, 2015 at 2:49 pm

AMA on Reddit!
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Canuckamuk (@canuckamuk)
October 28, 2015 at 2:01 pm

Bill P. :
Were your boy scout anal rape stories inspired by seeing little bitty Brett's
mug shot where he is wearing his child size uniform?
(Can someone reply and attach the aforementioned photo please-Thx)

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Accipe remedium, Tremule!


October 28, 2015 at 2:11 pm

https://sfcmac.les.wordpress.com/2012/05/brett-kimberlin-terrorist-insecurity-guard-uniform1.jpg
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Canuckamuk (@canuckamuk)
October 28, 2015 at 2:17 pm

Thanks
He looks like he is ready for trick or treating..
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Rob Crawford
October 28, 2015 at 3:03 pm

Bill was only interested in the tricks.


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Howard D. Earl
October 28, 2015 at 3:49 pm

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What a goofy leprechaun costume.


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evilwillie00
October 28, 2015 at 4:05 pm

Speaking of costumes.........................................I believe Brett is required by


law to 'be inside his primary registered residence, with outside lights o,
door shut by 5pm est on October 31.' Can we get that conrmed by
anyinvestigative journalist on this blog? Thanks
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Colonelvictortrollpoker
October 28, 2015 at 8:34 pm

http://www.dpscs.state.md.us/onlineservs/socem/default.shtml
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BusPassO

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ce

October 28, 2015 at 3:56 pm

had an extensive conversation with Amazon Canada where it is illegal to


market for sale any stories involving children in explicit sexual situations,
Also alerted them to the ramications that if they don't act they are exposed
to millions of dollars in legal jeopardy if a child is ever harmed or buys a tract
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with children in sexual situations as well as the obvious TOS agreement


violations.
Amazon USA then called my private line to get more information, I also
pointed out that the national director of safety for the BSA has also called me
over content.
This above statements - are they statements or are they a ctional account of
what has just transpired?
Hmmmmmmmmmmmmmmmm
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ce

October 28, 2015 at 4:00 pm

If I were someone totally stupid to make child porn then try to slip it through
the Amazon self publishing to taunt people and to solicit pedophiles to
impress other pedophiles, I would be wondering right now if it was worth it?
did I think I was going to actually gain or benet from it?
But clever is as clever does, in the end it all comes down to accountability
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Je M
October 28, 2015 at 5:48 pm

Here is an amazing coincidence: Bill Parvocampus's wife (his wife before he


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became a zombie, that is, because being undead terminates marriage just as
much as being dead does) has also written a book under the pseudonym of
Truck Stop Whore. Although written in the rst person, it may well be
ctional because it is almost impossible to believe that anyone could have
sucked 23,451 cocks, not counting repeat customers (who got the very
reasonable price of a quarter per session). Do not miss the touching
idedication: "To my husband, my coach, my impimpsario and my lifelong
inspiration, whose extensive experience in deep throating turned my career
into a success." The only thing disappointing about the book is the quality of
the photographs of her working at what she did best: there was a denite
need for a more professional hand behind the camera. Note that all royalties
go to the Parvocampus Fund at the National Syphilis Foundation.
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Howard D. Earl
October 28, 2015 at 7:32 pm

Interesting. Would that make Mrs. P's jaw issues ctional also?
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wpdavidd
October 28, 2015 at 6:58 pm

So BS is going to claim to be the original TMZ and the HZIC is supposed to


just roll over and let it go?
He didn't think this through very well, did he?
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But then, why should this time be any dierent, eh?


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The Thinking Man's Zombie / Proudly powered by WordPress

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It'sReallyOK,DUMBFUCKTheThinkingMan'sZombie

The Thinking Man's Zombie


BRAAAAAAAAAINS!!!!

It's Really OK, DUMBFUCK

Go aheadclick it. Its really all right


No shame, DUMBFUCK. Its the 21st century. Embrace truth. Embrace
freedom. Be happy at last.
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Paul Krendler / January 8, 2016 / Life Skills

35 thoughts on It's Really OK, DUMBFUCK

Jane
January 8, 2016 at 11:11 pm

Oh, I'd bet that's already in the stalking rotation.


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dmaninblack
January 8, 2016 at 11:19 pm

ok fess up, who used a certain someones picture to make a prole there?
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Paul Krendler
January 8, 2016 at 11:35 pm

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I think that's prolly legit.


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Kobayashi Maru
January 8, 2016 at 11:23 pm

Helpfully, he conrms where his interests lay:


https://twitter.com/YoungestOldDude/status/685690460036296704
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Kobayashi Maru
January 8, 2016 at 11:24 pm

https://twitter.com/YoungestOldDude/status/685689814033760256
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Avenger Watcher
January 9, 2016 at 12:00 am

The "rebranding" seems to be going amazingly well.


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Ashterah
January 9, 2016 at 6:59 am

Oh yes, that rebranding is *spectacular*!. SMH


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BillyProjecting
January 9, 2016 at 9:42 am

Billy would know a lot about ass-licking (especially involving trannies


and cub scouts)
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MJ
January 8, 2016 at 11:58 pm

Gawwd... how much more projection does this guy need for people to accept
he's gay? Who doesn't openly accept this poor man's coming out of the
closet?
We're proud you've left the closet, Bill! I realize you're old, but hopefully, you
can be the best Packer fan in world!
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Ashterah
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January 9, 2016 at 7:01 am

Unfortunately to him, its an aront to his manhood to suggest that. Even


though its really what he wants. I've seen all the symptoms before. It will
end badly for him if he keeps denying it.
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MJ
January 9, 2016 at 1:12 pm

He oered to snuggle the package guy in his building. Slowly, but surely,
all will be revealed about his desire to "touch" the neighborly men.
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JeM
January 9, 2016 at 12:06 am

Powers and principalities of the air defend us: a supposedly grown man
saying "poopiepants." How pathetic.
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juicyjoe101
January 9, 2016 at 1:14 am

I refer back to my previous comment about his writing sounding like


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something you'd hear on an elementary school playground.


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JeM
January 9, 2016 at 1:20 am

You are demeaning elementary school kids.


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Toastrider
January 9, 2016 at 6:19 am

Are we SURE this guy was a GS-13? I know government standards are low,
but good grief.
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Easein
January 9, 2016 at 12:11 am

We're RICH!
Blob is like Honey Boo Boo Mother.
WE COULD MAKE MILLIONS!
Convince Blubber to come out of the closet (He just posted today that he
want's to snuggle with the octogenarian deliveryman) (did someone cache
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that?) and we can sell the whole thing to TMZ! NETFLIX!


The script is already written! Years of backstory; Tincasa living, lots of latent
homosexual clues (he was in the Navy/scouts), restraining orders, copyright
infringements, defamation, internet expert journalist, etc. He's our next
Caitlyn Jenner! (not that there's anything wrong with that).
Get Bill set up with some amenable same-sex senior for a reality TV date!
It's a GOLD MINE!
Octogenarian Gay/Brony litigious coming out story!
He'd totally be up for it considering he's thinking he can get rich from the
courts.
He'd lap it up like rum-soaked custard.
Be Free Bill, be Free!
I claim intellectual property copyrights pro se.
Have we got some writers here?
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juicyjoe101
January 9, 2016 at 1:11 am

Wait just a minute, is this the same guy (using that loosely) who is suing a
bunch of people because they hurt his feelings? Man, what a pathetic
dumbfuck.
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BusPass
BusPassOce
January 9, 2016 at 3:11 am

Cardinal Management has been forwarded these tweets - I'm sure they are
approving of this horrid use of their name and images for his pornographic
tweets
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Neal N. Bob
January 9, 2016 at 9:41 am

I was wondering if the nuns knew THAT about him?


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CanticleAndJuniperCourtsTrouble
January 9, 2016 at 9:45 am

Wish I could be a y on the wall whenever they discuss their DUMBFUCK


tenant's penchant for porn (and stalking and harassment and guns and...)
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BusPass
BusPassOce
January 9, 2016 at 10:01 am

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they cannot be pleased with his latest forays, but of course its our fault
cause he once wrote he had PD but some insurance doc said dierently
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librarygryon
January 9, 2016 at 7:28 am

So, he managed to present a reasonably adult face to the internet for what, 12
hours? He left lickspittles and zombies alone for 12 hours, and we left him
alone and he was so desperate after just that short period of time, that he had
to start attacking again.
Sad.
Pathetic.
Disturbed.
If I lived in the apartment next to a creature who posted tweets like that, I'd
be concerned about having grandchildren visit.
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BusPass
BusPassOce
January 9, 2016 at 8:57 am

Subtract 11 hours for sleep...


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BillyButthurt
January 9, 2016 at 9:49 am

Speaking of people who have sadz...


"This information needs to be recanted at once. I am the individual
mentioned here. I have no criminal record, no access to rearms. The
management of this complex did a thorough background check on me. This is
a blatant attempt by [REDACTED] of Paris, TN, to have me killed. I am not a
pedophile. I do not deal in child porn and have nothing but revulsion for
those who do.
Do you people check these things before you print them? Do you realize that
you are putting my life and the life of everyone in this residence in danger?
Remove this at once, and notify me as to who placed it so I can seek criminal
charges."
http://www.complaints.com/2015-12-19/real-estate/cardinal-capitalmanagement/st-francis-wi-53235-us/warning-cardinal-capitalmanagement-allows-psychostalkerpedo-to-live-juniper-court108/1001450563748101813.html
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Paul Krendler
January 9, 2016 at 9:53 am

When I saw that, I looked very hard for the part of the complaint that could
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POSSIBLY be interpreted as "a blatant attempt to have me killed..."


I couldn't nd that anywhere.
Then I looked out the window of my spacious, rent free home, and I saw it
sprayed about everywhere like bloodstains in an abattoir.
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BillyProjecting
January 9, 2016 at 10:01 am

The creepy side of it is that Blob, as usual, is projecting....Which means


that his defamation and libel are actually eorts to get his "enemies"
killed. (Though, if Billy really wants to kill the "enemy," well...I'll leave
the advising to Howard D. Earl here)
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Jane
January 9, 2016 at 10:08 am

That's the fantasy; that happy its wife died themerrywidower is an


important entity; so important that many would like to see it killed.
Dementia in an already diseased brain is quite humiliating, but not as
much as the stooooopid, and the narcissism.
This is like that ridiculous 'bloodonthemike' delusion, wherein some on
the right were determined to 'shut up' an 'inuential' dementia-addled
blogger who would destroy their electoral chances. You know, with less
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than ten followers on twitter, rarely getting a reply to a multi-tagged


tweet, and not making Alexa rankings, you can bet that freak is all the
GOP talks about in strategy sessions.
Stooopid that deep should be painful. Sadly, the dementia prevents it
from grasping how much of a FOOL it makes of itself; all we do is point it
out.
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SameKettleOfFrisch
January 9, 2016 at 10:15 am

Deb Frisch used to have the exact same fantasy delusion and narcissism.
How'd that work out for her?
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Paul Krendler
January 9, 2016 at 10:16 am

The homeless convicted felon Deb Frisch?


That Deb Frisch?
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Jane
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January 9, 2016 at 10:16 am

Exactly, BillyProjecting - the freak always, always tells on itself. No


wonder it's so paranoid around nuns.
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Jane
January 9, 2016 at 10:00 am

As a rule, I don't approve of making irl contacts over internet behavior,


other than LE if the behavior actually warrants it. That being said, does
anyone have a ballpark idea of how many times happy its wife died
themerrywidower contacted employers, family members, or made other irl
contacts wrt whomever the freak was targeting at that moment?
Links were included to support every accusation made by the anonymous
complainant. That complaint wasn't just the paranoid, delusional, ravings
of a diseased and demented mind. It didn't appear to be narcissistic
attention seeking.
And the whiny demand to remove the comment didn't include any proof to
the contrary.
Funny, that. And quite hypocritical.
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BusPass
BusPassOce
January 9, 2016 at 10:41 am

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He's called me and spoke to me at least twice, left several msg, once sent
a profanity laced email, wrote that he called the police, the newspaper,
the mayor, possibly called Tory's athletic department at her university,
possibly contacted my neighbors, made websites about my children,
wrote several times I was raping my youngest daughter. He forged a sick
twisted perverted review on one of his book jackets in my name to smear
me and create false evidence which is a crime in Tennessee.
If someone kills him over his child porn rape fantasies of boyscouts that
would be a terrible crime.
Making rape fantasies to urge sick perverts to injure precious children
and try to sell them worldwide can bring all sorts of angry responses from
people who might do anything to protect children. Not something
someone should do under any circumstances.
I don't know what he is talking about and have nothing to retract
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Jane
January 9, 2016 at 11:47 am

And you're just one person. The freak has done the same type of thing
again, and again, to no one knows how many people, some who never
even heard of happy its wife died themerrywidower before it began
harassing them irl.
As I've mentioned many times, the malignant monster also chose to
endanger innocent children by making a bogus complaint to protective
services. If they'd taken the freak seriously enough to yank the children
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before investigating, they'd have at least been scarred for life. Why?
Because their parents chose not to share the intimate details of their
daughter's stillbirth with a complete, and creeptastic, stranger.
Oh, but how it whines when someone even hints at contacting anyone
in the malignant monster's misbegotten, miserable 'real' life. How it
howls at a complaint on the internet backed up with links to support
every assertion.
It really hates it when people tell the truth about it, and when there's a
risk the truth may impact it irl. Guess it should have thought of that
before it went on its rampages against so many others, huh? Of course,
it really didn't have the capacity, I suppose, because that diseased,
dementia-addled brain is pretty full with rage, envy, hate, perversion,
and twisted 'revenge' fantasies.
Will it stop? Nope - after alienating virtually all who've had the
misfortune to become aware of its sick existence, including its own
children, this is all it has left.
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Neal N. Bob
January 9, 2016 at 11:41 am

But it does appear that you have the Mother of All Counterclaims!
William should really think these things through before he gets all
litigious, but then he wouldn't be William.
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JeM
January 9, 2016 at 11:59 am

Jane, your thoughtful comment provokes me to be a little more serious


than is the wonted behavior at this site, which was after all founded in
the spirit of parody.
It is unfortunately true that what is moral is not necessarily legal and
what is immoral is not necessarily illegal. Witless Willie has done an
unusually large number of immoral acts, and many are perfectly and
indisputably legal. (I am assuming what should be obvious to anyone,
namely that the Wisconsin law Willie blathers about is unconstitutional.
If it is a crime to say on the Internet things that might be considered
abusive, Willie is looking at life in prison.)
But Willie cannot accept that the constitutional provision protecting his
immoral acts from legal reprisal simultaneously permits others to have
and express opinions on his despicable behavior. BPO has the
constitutional right to express his opinion that some of Willie's writings
are pornographic, an adjective with multiple though related meanings. (I
say this even though I disagree with BPO's opinion: Willie's writings
manage to make even sex unappealing, a literary failure of amazing
degree.)
The line in Willie's LOLsuit denying people the legal right even to hold
unfavorable opinions of him reects his inner thoughts. (I refuse to
believe that a GS-13 writer could mis-express his thoughts in something
as important as a federal lawsuit.)
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The Thinking Man's Zombie / Proudly powered by WordPress

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EXHIBIT F

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 14 Document 40-6

4/5/2016

IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

BILLYSEZTheBillSchmalfeldtFeldtdownObserver
"AllthatisnecessarytodiscreditBill
Schmalfeldt,istoquoteBillSchmalfeldt"
R.S.McCain

IJustCantEven
PostedonJanuary16,2016byTheDreadPirateZombie

So.Therewasthis.

1,101views

ShowingHERE.
IfBillSchmalfeldtwantsus/theworldatlargetobelievethatWJJHogeandhiscultofpersonality
areresponsibleforhiswifesdeath,thenBillSchmalfeldtneedstotakeresponsibilityforhisobsessionwithWJJ
Hogethatcausedhiswifesdeath.IwouldsubmitthatifBillSchmalfeldthadnotbeenacreepycyberstalkercry
bully,therewouldnothavedevelopedanythingthatBillSchmalfeldtwoulddecidewasacultofpersonalitythat
wouldthenberesponsibleforthedeathofhiswife.HiswifewhoBEGGEDhimtostopharassingWJJHogeand
toletitgo.BEGGEDHIM!ANDHEREFUSEDTO!Husbandoftheyearrighthere,folks!
IfwhatBillSchmalfeldtsaysistrueabouthiswife,thenBillSchmalfeldtALSOneedstotakeresponsibilityforthe
deathofMichaelMalone.Becausereasons.ThatBillSchmalfeldtdecidedwereso.Goose,gander,sauceandall
that.
BillSchmalfeldtjustforfeitedthelastscrapofhishumanitycard.Welldone,DUMBFUCK!Welldone!
Andjustanote.BillSchmalfeldtdoesntgettorewritehistory.Wehaveallhiscontemporaneousstatementsas
thingsweregoingdown.ALLofthem.Letsjustsaythathismemory?Lovestotwistandturnthingsaround.Then
again,thisisadaythatendsinysoIshouldntbesurprisedintheslightest.

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

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AboutTheDreadPirateZombie
MemberoftheZombieHordeandLickspittleMinion.Outtoeatyourbrainnnsssss.Andafewothersweetbreadsbecausethey
aresonommy.Beafraid.Beveryafraid.
ViewallpostsbyTheDreadPirateZombie

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50ResponsestoIJustCantEven
NealN.Bobsays:
January16,2016at9:40am

IdosohopethattheseallegationsfindtheirwayintotheamendedLulzsuitVIcomplaint.Itwillbeilluminating.Thereare
morethanafewthingsinthatpostthatcouldleadtofascinatingavenuesofdiscovery.Atleastonematerialassertiontherein
(and,no,Iwontbesayingwhichone)iscontradictedbyWilliamsotherpublicstatementsonthematter.
Ifoneissuingonthebasisofonessterlingcharacter,oneshouldendeavortotellthetruthinpublicaboutallthingsatall
times.Putanotherway,youcannotbealiarandthenclaimthatothershavedamagedyourreputation,atleastnotwithany
prospectofsuccess.
Ontheotherhand,WilliamwouldntbeWilliamifhestarteddoingthesmartorlogicalthing.
Likedby5people
Reply

librarygryffonsays:
January16,2016at10:53am

DudehasthecommonsenseGodgavemarshmallows.Perhapsless.
Likedby3people
Reply

STFUBillysays:
January16,2016at1:41pm

Ontheotherhand,WilliamwouldntbeWilliamifhestarteddoingthesmartorlogicalthing.
whichiswhywecallhimDUMBFUCK
Likedby1person
Reply

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

JeffMsays:
January16,2016at11:17am

Onsomedays,WitlessWillieinspiresmetohumor,andonotherstosobriety.Today,IdontknowwhichmoodIamin.
Ifindappallingthemoderntendencytocriminalizeeverything.ProbablybeforeIdie,Ishallbereadingaboutthelifetime
incarcerationofsomeunfortunatenicotineaddictforfartingthirdhandsmokeinpublic.Somanythingsarenowcriminal
thatIwouldnotbesurprisedifseveralwhomWillietheWonderhasannoyed,offended,ormerelydisgustedhavecommitted
criminalbutperfectlymoralacts.IdadviseagainstdoinganythingcriminaltofarfromWeeWilliebecauseofthepotential
legalconsequenceseventhoughImightapprovemorally.Ifitwas,asitpossiblymayhavebeen,acrimeinsomejurisdiction
forsomeonetocausehorseshittobemailedtoWilliewithoutalltheproperpaperwork,taxes,andconsumerandpublic
healthprotectionsrequiredbystatuteandimplementingregulation,therewasnothingimmoralaboutit,andhisreaction
washighlyentertaining.
Onthemoralsideoftheledger,WeepingWilliehasnothingtocomplainabout.Peoplearedoingtohimwhathehasdoneto
others.Actually,theyaredoinglesstohimthanwhathehasdonetoothers.Hetriestointerferewithothersemployment
otherstrytointerferewithhisresidence.Itisfareasiertofindanewapartmentthananewjob.Indeed,ifRoyiscorrect,
nothingdonetoWilliewouldbeimmoralhowevercriminalitwas.(Asyoucansee,mymoralcodeisprofoundlyun
ChristianIfindturningtheothercheektobemereincitementoftheYahoos.)
Ofcourse,moralitydemandsthatthingsdonetoWillienotriskharmoreveninconveniencetotheinnocent.Itwouldbeboth
criminalandhighlyimmoraltofirebombanoldpeopleshomejustbecausethemanagementletWillieanapartment.So,in
thevanishinglysmallchancethatanyofyouarecontemplatingsuchuseofexplosivesorcombustibles,Ibeseechyou
earnestlytobanishsuchthoughtstotherealmoffantasy.
Likedby1person
Reply

librarygryffonsays:
January16,2016at11:30am

Wemustrememberthattheonlypersontosuggestthathisapartmentwasgoingtobefirebombedwashimself,when
heclaimedthatmanagementwereafraidthatwasgoingtohappen.
Ipersonallywouldlovetoknowwhoputthatideaintheirheads,becauseitwasntoneofus.
Likedby4people
Reply

JeffMsays:
January16,2016at11:48am

NotexactlyLG.ItisofcourseconceivablethatWilliealonehasexpressedsuchfears.Itisalsoconceivable
thatthemanagementoftheresidencefacilityexpressedsuchfearstoWillie:theywereafterallgullible
enoughtotakeWillieintobeginwith.Thatiswhyinmyopiniontheresidencefacilityandoneormoreofits
agentsmustbejoinedtothelatestsuit.Oncewedelveintotherealmoftheconceivable,thepossibilities
becomeincrediblynumerous.Takingthesparestview,eitherthemanagementdoeshavefearsandexpressed
themorWilliehaslied.IwillnotsimplyASSUMEwithoutevidencethatWillietoldthatparticularlie.
Likedby1person
Reply

librarygryffonsays:

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver
January16,2016at11:56am

True,wedontknowforsurethatthemanagementareafraid.
So,therewouldseemtobetwopossibilities
a)Billtoldthemthatsomeonehadthreatenedhim(likelyafalsehood,itcertainlywasntazombieor
lickspittle)causingthemtofear
or
b)Billnevertoldthem,andistellingusafalsehood.
Likedby1person
Reply

NealN.Bobsays:
January16,2016at1:06pm

True,wedontknowforsurethatthemanagementareafraid.
Thatswhatdepositionsanddiscoveryarefor.IfaDUMBEFUCKeverfiguresouthowto
servesomeoneproperlyandinsixlulzsuits,hehasntIsuspectthathelllearnthatin
shortorder.
IfIwindupbeingmiraculouslyincluded,somethingthatWilliamsgoingtohavetowork,/>
for,soitllprobablyneverhappen,Ihaveadiscoverylistthatwillquiteliterallytakehis
breathaway.
Likedby2people

NealN.Bobsays:
January16,2016at8:49pm

Williamdoesseemtohavethisinterestingtendencytomakeinflammatoryassertions,toss
theminlulzsuitsandassumethatnoonesgoingtochallengethem,despitehiswelldeserved
reputationfornottellingthetruthaboutanything.
Likedby2people

VigilansVindex(@VigilansVindex)says:
January16,2016at11:48am

Spilledethanol*is*flammable.
Likedby4people
Reply

Minemyownsays:
January16,2016at1:13pm

RememberBillisassociatedwithaconvictedbomber.
Likedby2people
Reply

LiveandLearnsays:
January17,2016at3:21pm

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 5 of 14 Document 40-6

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

CanticleandJuniperCourtsandCardinalManagementhasnodoubtcometorealizetheyscrewedthepooch
bynottakingacloserlookatBillybeforelettinghimputtheminthecenterofaCategory5shitstorm
Like
Reply

wjjhogesays:
January16,2016at11:47am

Cheekturningcanonlygosofar.Eventually,onerunsoutofcheekstoturn,especiallyafteracoupleofasskickings.
Moreover,IdontbelievethatChristiansareobligedtoturnsomeoneelsescheektobeslappedbutratherareobliged
toprotecttheinnocent.
Likedby4people
Reply

librarygryffonsays:
January16,2016at11:58am

Wasntturningtheothercheeksimplyinregardtoinsults,andnotphysicalthreats?
Likedby2people
Reply

JustAThoughtsays:
January16,2016at12:26pm

Yes,theinitialslaptowhichwewereexhortedtoturntheothercheekwasunderstoodatthetimeto
beaminsultnotanassault.Infact,theturningoffthecheekwasnotonlytorefrainfromengagingin
insultsinreturn,buttochallengetheotherpersontohalttheinsultsandtobasicallydarehimtostep
ituptoassault(astohittheleftcheekwiththerighthandrequiresapunch)andbravethe
repercussionsofthat.
Likedby2people
Reply

JeffMsays:
January16,2016at11:59am

IshalldefertoyourknowledgeofChristianmorality.Idonote,however,thatIwasnotlimitingmyargument
ofmoralreciprocityprospectivelytoprotectingtheinnocentfromfutureharmbutextendingit
retrospectivelytovindicatingthevictimsfrompastinjury.
Likedby2people
Reply

wjjhogesays:
January16,2016at12:00pm

Itiscertainlypossiblethatamoralactcanbeillegalandviceversa.
Likedby2people
Reply

Toastridersays:

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 6 of 14 Document 40-6

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver
January16,2016at1:19pm

Ah,thepaladinsdilemma:isitbettertobelawful,orgood?
Likedby1person

Toastridersays:
January16,2016at1:24pm

Donotinjusticetoanother,
defendtheweakandinnocent.
Lettruthandhonoralwaysguideyou,
letcouragefindthelightwithin.
Standupwhennooneelseiswilling,
actnotinhatredorinspite.
Betothisworldasaperfectknight,
evenifitmeansyourlife.
TheCruxshadows,Sophia
Likedby2people
Reply

Dr_Mikesays:
January16,2016at12:18pm

TherehavebeentimeswhenIvewonderedifBillisbeingdeliberatelyobtuse,orifhetrulyisstupidenoughtobelievewhat
hewrites.
IvecometoembracethepowerofAnd.
Thisisanovelinterpretationofevents
Likedby1person
Reply

TheDreadPirateZombiesays:
January16,2016at2:54pm

Iwouldsubmitthatitisnotnovel.Atleastnotnovelforhim.Heseeshimselfastheshiningbeaconofgoodthatis
beingtormentedbytheforcesofevil.Thatmeansthatallpastactsmusteventuallybeinterpretedinthatlight.
Thismeansexcusingthingsaway,turningthemtofitthetheme,fithisownnarrative.Hedoesthiseverysingle
time.
HowmanytimesdoeshehavetodistortrealtyDOCUMENTEDREALITYbeforeherealizesthathesnotwhat
hethinksheis?Ithinkitwillgoonforeverbecausethiskindofdelusionisallencompassing.
AndnowthatIvewrittenasmallnovel,Irealizethatyoumighthavemeantnoveltobeamusing,quaintand
possiblyasfarawayfromrealityaspossible.Thatworksformetoo.lol
Likedby1person
Reply

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 7 of 14 Document 40-6

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

Dr_Mikesays:
January16,2016at3:51pm

Imeantnovelasashorthandforbearingnoresemblancetorealityinanywayshapeorform.
Likedby2people
Reply

NealN.Bobsays:
January16,2016at1:12pm

ThisIsRadioDrumpf
@RadioDrumpf

Follow

IamnotadrinkerbecauseofthemedsItake.ButFatherHoge
saysIchugdowntheJWR(andonlyJWR)sothecultadoptsthe
doctrine.
1:06PM16Jan2016

Andwhatmedswouldthosebe?HowwouldtheybeprescribedifWilliamhasnthadadoctorforsixmonths?
Oh,Idohopethatthisgetstodiscovery!
Likedby3people
Reply

Toastridersays:
January16,2016at1:20pm

IreallyamwonderingifhesselfmedicatingwithherbsfromhisbuddiesinTK.
Imtellingyou,hesbeensmokingsalvia.Itwouldexplainhisoutburstsofdementation.
Likedby1person
Reply

RobCrawfordsays:
January16,2016at2:57pm

Jimsonweed.
Likedby1person
Reply

HowardD.Earlsays:
January17,2016at10:34am

Pole.
Like
Reply

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 8 of 14 Document 40-6

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

TechnoJinxxsays:
January16,2016at1:40pm

thatthereistypicalofGailsFormerAbuser,inhowhecompletelyignoresthattheJWRreferencewasfirstbandied
aboutbyTMZ.
butofcoursethatdoesntfitthe(false)narrativehessodesperatelytryingtobuild,beforehe(asusual)
deletes/memoryholes.
Likedby2people
Reply

TheDreadPirateZombiesays:
January16,2016at2:55pm

EverythingisHoooooooooooooooooooogesfault.EVERYTHING.Quitchangingthenarrative!
Likedby3people
Reply

DrunkenBillysays:
January16,2016at1:43pm

No,dummy.WeallbelieveyouguzzletheJWRbecauseyouactlikeadrunkenasshole.
Likedby2people
Reply

popcornsellersays:
January16,2016at4:44pm

IthoughtitwasbecauseoftheincreasedJWRsalesatitslocalWalgreens(coincidentalwithhisarrivalatSt.
FrancisWI).
Likedby1person
Reply

PaulKrendlersays:
January16,2016at3:19pm

Ifhesnotadrinkerbecauseofthemedshetakes,thenwhyISheadrinker?
Likedby4people
Reply

Dr_Mikesays:
January16,2016at8:11pm

CantfinditonYT,butBabylon5,afterVirkillstheCentauriEmperor:
Londo:Youredrunk.
Vir:Oh,I,oh,ooooh,youbetcha!Imeanitalwaysworkedforyou,Londo.SotellmeHowmanymoredoI
need,untilIcanlookinamirror,andnotseemyself?BecauseIkeeplooking,butIm_always_there!
Likedby2people

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 9 of 14 Document 40-6

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4/5/2016

IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver
Reply

Diannasays:
January17,2016at12:24pm

Mr.HogehasneveronceaccusedBSofdrinking.Butweallknewthat.ItsjustBSspoutingbs.
Like
Reply

Diannasays:
January17,2016at3:56pm

Well,IdowonderhowmanytimesthesixpackofStellaArtoishasbeenreplaced,sincehesaidhekeptsuchathing
onhandforvisitors.
Like
Reply

NealN.Bobsays:
January17,2016at3:59pm

Isvistorswhathescallingthevoicesinhisheadthesedays?
Likedby1person
Reply

Pablosays:
January16,2016at4:50pm

SonowBlobiscultobsessed,andHogeisMobyDickonceagain.Thatbeingthecase,itreallymakesnosensethathesnot
suinghim.ItslikeAhabchasinghalibut.
Likedby6people
Reply

JeffMsays:
January16,2016at5:33pm

ROTFLMAO.
Likedby1person
Reply

wjjhogesays:
January17,2016at8:16am

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 10 of 14 Document 40-6

https://billysez.wordpress.com/2016/01/16/ijustcanteven3/

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4/5/2016

IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

Fish Licence - Monty Python's Flying Circus

Likedby1person
Reply

Diannasays:
January16,2016at7:59pm

BillSchmalfeldtisahypocriticalliar.
HeisextremelyfortunatethatIamnotavengefulsort.
Likedby1person
Reply

theman9876says:
January17,2016at2:20am

IsthereanywayIcantalkyouintoBEINGthevengefultype??!!Themonkeydancingwouldbeglorious,because
DUMBFUCK!!
Likedby2people
Reply

Diannasays:
January17,2016at12:26pm

LetBSgoonashehasbeen.
Like
Reply

lorddewclawsays:
January16,2016at8:13pm

YeahRight.Acult.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 11 of 14 Document 40-6

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

Yourjustpissed,DerpasaurousMaximus,thatJohnhaspoststhatgetintotripledidgitswhereyouhavetorelyonyourself
createdsockMarkinMDtogetasinglecommenttooneofyourgarbageposts.
Theanswerisrightinfrontofthatdickdentedmelonofyours,Dumbfuck.
Yousuck.Yourlifesucks.Yourblogssuck.Yourwriting.yourcomedyitsuxdonkeybalz.
Becauseagroupofpeoplecometotheconclusionthatyouareahugepieceofshitdoesnotacultmake.
Getbent,dumbass.
Likedby3people
Reply

Gracesays:
January17,2016at4:23pm

DerpasaurousMaximus.
IchuckleeverytimeIseeyourefertotheDerangedCyberstalkerBillSchmalfeldtbythatname,lord.lol!
Like
Reply

HowardD.Earlsays:
January16,2016at8:29pm

Thereisnodebateastowhetherornotyoushouldbemurdered,Shakes.
Like
Reply

TheDreadPirateZombiesays:
January17,2016at10:59am

Iwouldagree.Thereisnodebate.Nooneshoulddothatsortofthing.I,andothers,knowthatyouarejust
respondingtothatnonsensicaltweetthathepostedinsinuatingassuchhere:
https://twitter.com/YouGetNoQuarter/status/688503158318968836
PleaserememberthatBilltakeseveryopportunitytotwistthingsaround.Hewill,invariably,takethisasa
DEATHTHREATELEVENTY,andIwouldliketodisabuseanyoneofthatnotion.
Likedby1person
Reply

JeffMsays:
January17,2016at12:25pm

InWilliesmind,heistheheroofthesagaratherthanitsbuffoon.Amentionofunspecifiedhypotheticalsin
aconversationaboutthedifferencebetweenmoralityandlegalityandalittleplayonwordsaboutno
debatearetransmogrifiedintoevidencethatacultisseriouslyconsideringhismurder.Nooneis
contemplatinghismurderbecausehispublicbuffooneryisfartooentertainingforanyonetobereadyto
bringdownthecurtain.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 12 of 14 Document 40-6

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

Whatisthesourceofthiscultnonsense?
Hedecidedthatitmadesensetoinvestigatesomeoneelsesfiles.Abitweird,butthereareconceivably
legitimatereasonsforgoingthroughfilesthatareapparentlyopentothepublic.Hefindsinthosefilesa
blankform.Hedecidesthattheform,thoughblank,istobeappliedtohim(becauseheisthehero).Andhe
furtherconcludesthatablankforminsomeoneelsesfilesjustifieshimsendinganemailtosomeonewhohas
repeatedlysaidthatcommunicationsfromBuffoonBillareunwelcome.
TheimplicationoftheemailisthatHogeowesa(completelyimaginary)dutytoWeepingWillietodiscloseif
theformwasfilledoutandsenttoanyone.TheemailexplicitlysaysthatBelligerentBillwillgraciously
overlooktheoffenseofhavingblankforms,providedthattheyhavealwaysremainedblank.
Theemailispublished.PeoplehavehystericsoverBillslatestbumptiousness,andhemistakestheraucous
laughterforthesolemnritualsofacult.
Likedby3people
Reply

RobCrawfordsays:
January17,2016at4:29pm

ItstellingthatBillhasneverexpressedcargiverguiltorconcernthatHEdidntdoenoughforhiswife.Perhapsitsan
emotionthatshithiminprivatebutBillcantevenkeephisbowelmovementsprivate.Ratherhesdecidedhispersonal
villainsaretoblame,despitethemhavingnocontactwith,noresponsibilityfor,hiswife.
Likedby2people
Reply

Janesays:
January17,2016at4:44pm

ThisandsomuchmoreButnowthatitsbeentippedoff,watchittrytoplayatbeinghuman.
Like
Reply

gmhowellsays:
January17,2016at6:08pm

TransferringblamehasbeenarecurringthemeinthelifeofBillScmalfeldt(apersonImightadd,whoseclaimed
cousinbelievescommittedarape).
Like
Reply

HowardD.Earlsays:
January17,2016at7:11pm

Blobisblob.
Like
Reply

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 13 of 14 Document 40-6

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IJustCantEven|BILLYSEZTheBillSchmalfeldtFeldtdownObserver

BILLYSEZTheBillSchmalfeldtFeldtdownObserver
TheTwentyTenTheme.

CreateafreewebsiteorblogatWordPress.com.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 14 of 14 Document 40-6

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EXHIBIT G

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 3 Document 40-7

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EXHIBIT H

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 3 Document 40-8

",n'/,ero
.- .
iii

Circuit Court of Maryland for Carroll County


Court House Annex 55 North Court Street. Westminster. MO 211575155 Case No: 06-C-13-063359 VI
District Courtf: 1002SP001912013
Page: 01
WILLIAM JOHN JDSEFH HDGE
'Is.
BILL SCHMALFEUlT

Date: 06/1

FINAL PEACE ORDER


After the appearance of the [Xl Petitioner [X] Petitioner's Counsel [Xl Respondent [X] Respondent's Counsel.
and in consideration of :he Petition and evidence. the Court makes the following findings:
A. 1. That there is clear and convincing evidence that within 30 days before the filing of the Petition, the
Respondent committed the following act(s):
Harassment

Based on the foregoing findings. the Court hereby ORDERS:


1. That. unless seated otherwise below. thlS order is effective untli 12/14/2013.

2. That the Respondent SHALL NOT commit or threaten to commit any of the fol1ow1ng acts against Petitioner:
an act which caCS2S seriOUS bodily harm: an
that placEs the Petl:1oner in fear of imminent serious
bOdily harm: assault: rape.
rape, sexual offense. or attempted sexual offense: false
imprisonment: harassment: staikir.g:
or
destruct10n of property.
3. That the Respondent SHALL NOT contac: (in person, by teiEphone. in writing. or by any other me3ns),
attempt to contact. or harass the
4. That the Respondent SHALL NOT
the resldence of
Petitioner at: 20 Ridge Road, Westminster. HD
21157.
(Residence includes yard. grounds. outbuildings. and common areas surrounding the dwelling.)

06114/2013

NOTICE TO RESPONDENT
V1olation of this Peace Order may be a crime or contempt of court or both. and could result in impr'sonment
or fine or both .

_-_

_-

_._---.. _ - - - - - - - - - - -

':

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 2 of 3 Document 40-8

Circuit Court of Maryland for Carroll County


Court House Annex 55 North Court Street. Westminster. Mil 211575155 Case No: 06C13063359 V2
District Court#: 1002SP001912013
Page: 01
WILLIAM JOHN JOSEPH HDGE
vs.
BILL SCHK'\LFELDT

Date: 12/0

FINAL PEACE ORDER


AftEr
:f the [X]
[X]
eX]
[ ]
:nd in conS l oer2t;on Cf tne Petit 40n and evioence. the Court makes the following findings:
A. 1.

is
:'t25yO'id?1t

end conv!ncing
the

that

30 days

the filing of

the

cct(s):

Harassment

Based on the foregoing findings. the Court hereby ORDERS:


!. That.
stated
this order is e7fective J:itil 06/09/2014.
i.

ThaT.

Respcndeni
NOT commit or tnf2aten to
any of the followir.9 eets against Petiticner:
ceuses
an act
Qlaces the Petit,oner
fee: of
bean y hanr: c5sau i!: rep:. cnerrip:ed ratjE. sext;e:1
cr ctteffioted sexua 1 cfferrse: :5 i Se
impr;S0;";f1e:-t: hcrassl!1!"rt:
tre:spass: or
aestrjction oi property.

3. That tr.e R;sponden: SHA....L NOT contact (; n person. by telEphone . i!'; ....

by cny ::t1'"re: ri'..cc:"l!).

to c-antact. or f";t,ass
Th=: :re R2spcr;oen: S!1ALl.. NOT
21157.

l2. J9J2Qi.3

Of :he Pet':",;.r;-:' at: 20 Ridge Road. Westminster. !'ID

:he

..................... :. '
judge
F Stansl' ld

NOTICE TO RESPONDENT
of
:r fi!"!E

Jf

PeaCE Oids; may be 0

cr

c i C0wrt Oi

cna ccu1c resJ!:

bo:h.

ENTERED DEC - 9

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 3 of 3 Document 40-8

i"

EXHIBIT I

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 12 Document 40-9

THE CULT OF HOGE

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Did The W.J.J. Hoge Cult Of Personality Kill


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The Cult of Hoge
My wife, Gail, was diagnosed with Scleroderma an autoimmune disorder in 1998. She was
diagnosed with the CREST variant of the disease, which meant her condition was limited to hardening

META

of the skin in her face, forearms and hands, and lower legs. She did very well, maintaining her health
through the rst decade of the century. In fact, at one point she was nearly 300 lbs.

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I was diagnosed with Parkinsons disease in 2000. In June 2007, I volunteered for a clinical trial to test
the safety of deep brain stimulation in early Parkinsons disease. In essence, I volunteered for brain
surgery, which was conducted
13, 2007I was employed asFiled
a GS-1304/14/16
Writer/Editor at Page
the National
Case June
2:15-cv-01516-NJ
2 of

12 Document 40-9

surgery, which was conducted June 13, 2007I was employed as a GS-13 Writer/Editor at the National
Institutes of Health until my condition progressed to the point where I was granted early retirement
in 2011. As neither Parkinsons nor Scleroderma are inherently fatal, Gail and I were looking forward
to a long, happy retired life together. As my condition worsened, she became my caretaker, helping
with things like driving, helping me navigate with my walker, etc.
To this point in my life, I dont believe I had so much as a speeding ticket. Then, to supplement my
income, I engaged in freelance reporting for a couple dierent liberal news outlets online. I wrote a
story about a convicted felon who was released after doing his time and was now engaged in
progressive social activities, getting out the vote, etc. A gang of right wingers, led by the notorious
Andrew Breitbart, decided that they couldnt stomach this ex-cons walking among them all free and
such, and the launched a campaign of harassment against him that he is still ghting o. My story
took his side. That enraged the right wingers.
In September 2012, a right wing writer for Breitbart claimed I threatened to rape him and his wife.
The police came to my house and realized there was no threat. A disgraced, red attorney named
Aaron Walker wrote on his blog that I threatened the writer and his family with rape. The fact that
the police cleared me made no dierence.
OCTOBER 2012 WJJ HOGE III writes a blog post about my implied threat to sue his friend, Aaron
Walker, over what I thought was a libelous accusation.
OCTOBER 2012-FEBRUARY 2013 The discussion turns into a point/counterpoint ame war
between Hoge and myself, during which he inserts himself into a dispute Im having at the time with
another right wing blogger. The defamatory posts are more frequent. Hoge claims he issued a cease
and desist contact tweet on Twitter.

Never once does he tweet, write, convey or send a smoke signal warning, Bill Schmalfeldt, cease
contacting me.
FEBRUARY 18, 2013 Hoge gets a Carroll County Court Commissioner to le three criminal
charges against me. Harassment as a course of conduct, Electronic Harassment and Illegal Acces to a
Computer. In the latter charge, Hoge alleges that on the day when Super Storm Sandy was ravaging
the east coast, I somehow managed to hijack a computer server in Kansas City, MO, and use it to
send harassing messages to him. He never really explains how I managed to do that. The three
charges are deemed nolle prosequi by the States Attorney on April 17, 2013. (SA/NP)

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 3 of 12 Document 40-9

charges are deemed nolle prosequi by the States Attorney on April 17, 2013. (SA/NP)
FEBRUARY 21, 2013 Hoge applies for a peace order. He is awarded a temporary peace order, but
on February 28, he is denied a nal peace order by the Carroll County District Court. He appeals.
MARCH 18, 2013 Hoge convinces a Carroll County Court Commissioner to le a harassment as a
course of conduct charge against me. SA/NP on April 17, 2013. He also secures a temporary peace
order. He is again denied a nal peace order by the Carroll County District Court on March 25, 2013.
MARCH 20, 2013 Hoge gets a Carroll County Court Commissioner to le a charge of violating the
temporary peace order issued March 18. SA/NP on April 17, 2013.
MARCH 25, 2013 Hoge tries again in the Carroll County District Court for a peace order. He is
denied once again.
JUNE 14, 2013 In the appeal of his rst denied peace order, Hoge convinces a Carroll County
Circuit Court judge who admits on the stand that he doesnt know what the Twitter is, that blocking
a person on Twitter is more dicult than having to change your phone number to avoid
telemarketers. The Court issues a six-month peace order. The order is extended for six more months
on December 9, 2013. It expires on June 14, 2014.
JULY 8, 2013 Hoge gets a Carroll County Court Commissioner to le ve separate charges of
violating the June 14 peace order. SA/NP Sept. 11, 2013.
AUGUST 5, 2013 Hoge gets a Carroll County Court Commissioner to le three additional charges
of violating the June 14 peace order. SA/NP Sept. 11, 2013.
NOVEMBER 8, 2013 Hoge gets a Carroll County Court Commissioner to le a charge of electronic
mail harassment, harassment as a course of conduct, and THIRTY-SIX charges of violating the June 14
peace order. SA/NP January 29, 2014
NOVEMBER 12, 2013 Hoge gets a Carroll County Court Commissioner to le ONE HUNDRED
NINETY EIGHT additional charges of violating the June 14 peace order. A warrant is issued for my
arrest. After I make arrangements to turn myself in, the SA rescinds the warrant and issues a
summons. SA/NP January 29, 2014
NOVEMBER 15, 2013 Hoge gets a Carroll County Court Commissioner to le EIGHTY EIGHT
additional charges of violating the June 14 peace order. SA/NP January 29, 2014. LATER THAT SAME
DAY, Hoge gets a Carroll County Court Commissioner to le TWENTY NINE additional charges of
violating the June 14 peace order.

Every time Hoge had charges filed against me, it necessitated a


visit to our home by Howard County Police officers, in full view of all
the neighbors. This humiliated and caused emotional stress for Gail
who was afraid with each knock at the door it would be the police
coming to haul me off. By June 2014, Ive noticed my wife is losing
weight. But at this point it is not alarming. She sees her doctor every
three months and all is well with the lab work. In addition to the
repeated visits from the police, Gail has become afraid to check the
mail. At some point in the spring of 2014, Hoge or one of his
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 4 of 12 Document 40-9

readers sent us a Tupperware container filled with horse manure. It

readers sent us a Tupperware container filled with horse manure. It


made Gail vomit.

MAY 27, 2014 I le a harassment case in the US District Court for the District of Maryland,
Northern Division against Hoge and several of his readers alleging harassment, IIED and other torts.
My wife begs me to not follow through because of the stress this whole situation is causing our
family. I withdraw the suit on May 29, 2013.
ALSO MAY 27, 2014 Hoge les a copyright infringement suit in the US District Court for the District
of Maryland, claiming that I stole bits and pieces of his blog to publish on my blog. He has to rele
his complaint June 11 when he realizes he needed to register his blog with the US Copyright Oce
before he can le a copyright infringement suit. Hoge seeks a preliminary injunction on June 12,
asking the judge to order me to remove all material from my blog that he deems infringing. Judge
Ellen Hollander holds a hearing on the motion June 6, 2013. She issues her ruling denying Hoges
motion on July 1, telling him that his suit is probably doomed. The case is referred to a magistrate
judge on July 7. He holds a hearing on August 14. The judge denies Hoges demand for $640,000,
awards him nothing, and orders me to not infringe on Hoges copyright. After that hearing, Hoge tells
me that he has no intention of following through with the appeal of the July 17 denial of his Peace
Order. We shake hands.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 5 of 12 Document 40-9

JULY 17, 2014 Hoge tries again in the Carroll County District Court for a peace order. He is denied
once again. He appeals.

It was about this time that Gails weightloss was becoming


noticeable. She was starting to lose her balance as well. She made
me promise her that when the Copyright suit with Hoge was over, I
would have nothing to do with the man. She told me the stress of
worrying about me and the worsening of my Parkinsons disease
was more than she could bear.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 6 of 12 Document 40-9

AUGUST 27, 2014 Despite assurances that Hoge would not pursue the appeal, he shows up at the
Carroll County District Court and gets an uncontested six-month peace order. He has no explanation
for why he lied to me, other than I should have shown up.

JANUARY 30, 2015 I appear at a Show Cause hearing for Contempt of Court in the Carroll County
Circuit Court for allegedly violating the August 27 peace order. Hoge oers into evidence a letter I did
not write, sign or mail, claiming it came from me. On reviewing the letter, the signature is almost
identical to a court document I signed some months earlier, as if someone traced this signature over
the old signature. The judge denies the Contempt petition.
FEBRUARY 13, 2015 Hoge tells his readers that his wife is suering from bone cancer. As my own
wife is ill, out of human compassion, I sent Hoge an e-mail telling him that my former connections at
the National Institutes of Health, from which I took early retirement because of advanced Parkinsons
disease in 2011, are atCase
his disposal
should he and his wife wantFiled
help cutting
through redPage
tape to get
2:15-cv-01516-NJ
04/14/16
7 of

12 Document 40-9

disease in 2011, are at his disposal should he and his wife want help cutting through red tape to get
her into a clinical trial if she so desired. Hoge convinces a Carroll County Commissioner to le a
charge of violating the peace order. This one goes to trial on April 16, where I am found not guilty
because of the lack of criminal intent in the contact.
FEBRUARY 23, 2015 I le a harassment suit in Howard County Circuit Court charging Hoge with
defamation per se, IIED and other torts. The case is dismissed for lack of personal jurisdiction on June
23, 2015.

At some point after this, I wrote to all involved and asked them to
please just drop me from their consciousness. I explained Gails
condition. I explained how experts had determined that severe
emotional stress could be life-threatening to her. I included photos
taken, (with her permission) showing Gail with her skin hanging from
her arms and her ribs visible. It did no good. In fact, either Hoge or
one of his readers sent us a little present of feces-scented candles.
Later I posted a photo of Gail (with her permission) showing her
distended abdomen from fluid retention.
MAY 1, 2015 As my wife was getting sicker and sicker, Hoge tried yet again for a peace order in the
Carroll County District Court. Despite needing nearly 24/7 care, I was dragged from Elkridge to
Westminster for this hearing. This time, I argued personal jurisdiction. The court agreed and ordered
Hoge to le in Howard County as that was the county of my residence. That afternoon, Hoge hurried
to Ellicot City, led for a temporary peace order and was denied. He appealed.

By the end of May, Gail had pretty much lost her sense of balance and control of her
bodily functions. On the morning of May 31, she woke up to find herself soaked to her
armpits. I gave her a bath, dried her, put on one of her nicer nightgowns and called 911.
Gail was in the Howard County General Hospital until June 5. At first they thought she had
ovarian cancer as that is the typical reason for retention of fluid in the abdomen. They
tapped 1.5 liters from her abdomen, but there were no cancer cells. On June 5, they tapped
another 1.5 liters. The blood tests showed her kidneys were failing. The hospital arranged
for home hospice and Gail came home for the last time. Her first few days she was weak
but in good spirits. Soon, she was asleep more than she was awake. She went into a coma
on the afternoon of June 16. She died on June 17. As I was waiting for the hospice nurse to
come and make it official, either Hoge or one of his readers sent an anonymous e-mail.
Could you get the old girl to hang on for one more day? I have the 18th in the death pool.
Earlier, I petitioned the Howard County Circuit Court to delay their scheduled June 25
appeal hearing of Hoges denied May 1 Peace Order attempt. Hoge filed a motion in
opposition. Gail died on June 17, a fact that Hoge celebrated on his blog two days later.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 8 of 12 Document 40-9

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 9 of 12 Document 40-9

THE HEARTLESS SON OF A B*TCH WAS


Case 2:15-cv-01516-NJ Filed 04/14/16 Page 10 of 12 Document 40-9

CELEBRATING MY WIFES DEATH.


Ultimately, the Howard County Circuit Court invoked res judicata and denied his appeal.
Hoge scurried back to Carroll County Circuit Court which deferred to Howard Countys
ruling.
With Gail being gone, I had no reason to stay in Maryland. If I stayed, I would continue to
be easy pickings for Hoge to file new charges, new peace orders whenever he liked. I
moved to Wisconsin on August 22, 2015.
In a recent conversation with our former family practitioner, he said it was certainly
possible that the severe emotional stress kicked Gails condition from dormant into high
gear. The literature on the disease makes it quite clear:

So, DID Hoge and his cult of personality kill Gail? Theres probably no way to prove it. I suppose it could be purely
coincidental that her disease went from dormant to fulminant and fatal as the stress from Hoge and his disciples
continued. Personally, in my opinion, if I had never met or run afoul of Hoge and his acolytes, I believe Gail would be
alive today.
So, is Hoge the leader of a cult of personality and are his readers his followers?
Next post.
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Case 2:15-cv-01516-NJ Filed 04/14/16 Page 12 of 12 Document 40-9

EXHIBIT J

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 3 Document 40-10

UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF WISCONSIN
MILWAUKEE DIVISION
WILLIAM SCHMALFELDT,
Case No. 2:15-cv-01516-NJ
Plaintiff,
v.
ERIC P. JOHNSON, SARAH PALMER,
and JOHN AND JANE DOES,
Defendants.
DECLARATION OF SARAH PALMER
1.

My name is Sarah Palmer, and I make these statements based upon my own

personal knowledge. I am a resident of North Carolina. I am over 18 years of age, and if called
to do so, I am competent to testify that the contents of this declaration are accurate and true.
2.

In my last declaration, I noted that on Saturday, February 13, 2016, there was

attempted service at my household. After consultation with my attorney, I do not believe that
service was valid. Since that incident, I know of no attempt by the Plaintiff to complete service
of process. Certainly, there has been no successful service of process on me.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 2 of 3 Document 40-10

I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.

Executed on April 13, 2016 in

Reidsville

(city)

North Carolina

(state/territory)

s/ Sarah Palmer
(signature)

2
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 3 of 3 Document 40-10

EXHIBIT K

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 3 Document 40-11

UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF WISCONSIN
MILWAUKEE DIVISION
WILLIAM SCHMALFELDT,
Case No. 2:15-cv-01516-NJ
Plaintiff,
v.
ERIC P. JOHNSON, SARAH PALMER,
and JOHN AND JANE DOES,
Defendants.
DECLARATION OF ERIC JOHNSON
1.

My name is Eric Johnson, and I make these statements based upon my own

personal knowledge. I am a resident of Tennessee. I am over 18 years of age, and if called to do


so, I am competent to testify that the contents of this declaration are accurate and true.
2.

In my last declaration, I noted that on Thursday, February 11, 2016, a process

server attempted to serve me in this case, apparently acting on behalf of the Plaintiff. After
consultation with my attorney, I do not believe that service was valid. Since that incident, I
know of no attempt by the Plaintiff to complete service of process. Certainly, there has been no
successful service of process on me.

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 2 of 3 Document 40-11

I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.

Executed on April 13, 2016 in

Paris

(city)

Tennessee

(state/territory)

s/ Eric Johnson
(signature)

2
Case 2:15-cv-01516-NJ Filed 04/14/16 Page 3 of 3 Document 40-11

UNREPORTED OPINION
Provided under E.D. Wis. Civil L. R. 7(j)(2)

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 1 of 18 Document 40-12

Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

This opinion is subject to further editing. If


published, the official version will appear in
the bound volume of the Official Reports.

and he challenges the trial court's


determination that the claims were without a
reasonable basis in law or equity and filed
solely for the purpose of harassment.

A party may file with the Supreme Court a


petition to review an adverse decision by the
Court of Appeals. See 808.10 and Rule
809.62,
Stats.

We affirm dismissal of all claims, but on


grounds other than those relied on by the trial
court. We conclude the complaint does not
state a claim for a violation of 146.82-83 or
51.30(4), Stats., for requesting or obtaining
Hannigan's records without his informed
consent because these sections do not govern
such conduct and there is therefore no civil
liability for such conduct under 146.84 or
51.30(9),
Stats.
We
conclude
that
146.83(4)(b) and 51.30(4)(dm)(2), which
prohibit withholding or concealing of records,
do not prohibit inducing others to withhold or
conceal, and therefore the complaint does not
state a claim for relief under these provisions.
We conclude the complaint does not state
claims for relief under either 895.50(2)(a),
Stats., (intrusion in a private place), or
895.50(2)(b), (misappropriation), but does
state a claim against Borgelt (though not
Liberty Mutual) for giving publicity to a
private matter under 895.50(2)(c). However,
based on the parties' submissions, we
conclude Borgelt is entitled to judgment as a
matter of law on this claim. Finally, we
reverse the trial court's determinations on
frivolousness and remand for proceedings
consistent
with
this
opinion.

Stephen V. Hannigan, Plaintiff-Appellant,


v.
Liberty Mutual Insurance Company, Reliance
National Insurance Company, Borgelt,
Powell, Peterson & Frauen, S.C., a Wisconsin
Service Corporation, Eric B. Jensen and
Virginia Newcomb,Defendants-Respondents.
No.

98-2643

STATE OF WISCONSIN IN COURT OF


APPEALS
DISTRICT
IV
August

26,

1999

APPEAL from a judgment of the circuit court


for Dane County: RICHARD J. CALLAWAY,
Judge. Affirmed in part; reversed in part and
cause
remanded
with
directions.
Before Dykman, P.J., Eich and Vergeront, JJ.
VERGERONT,

J.

Stephen Hannigan appeals a summary


judgment dismissing his claims under 146.8184 and 51.30, Stats., regarding the
confidentiality of his health care and
treatment records, respectively,(FN1) and his
claims of invasion of privacy under 895.50,
Stats. The court also concluded the claims
were frivolous. Hannigan alleged these claims
against the law firm of Borgelt, Powell,
Peterson & Frauen, S.C., two of its
attorneys,(FN2)
and
Liberty
Mutual
Insurance Company, which the law firm
represented in Hannigan's prior personal
injury suit. Hannigan contends on appeal that
the trial court erroneously interpreted the
statutes and decided disputed issues of fact,

BACKGROUND
Since the first step in summary judgment
analysis is a determination whether the
complaint states a claim for relief, we begin
with the allegations of the second amended
complaint.(FN3) They are as follows. In the
prior personal injury litigation, Hannigan
provided, through his attorney Lee Atterbury,
a number of releases for his medical records
to Borgelt attorneys Virginia Newcomb and
Eric Jensen. Each release contained, among
other information: the name of one medical
provider, a statement that the purpose of the
release was for investigation of a personal
-1-

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 2 of 18 Document 40-12

Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

injury claim, the specific type of information


to be disclosed, a statement that only the
original of the release was valid, and
Hannigan's
original
signature.

statutes, punitive damages and declaratory


and
injunctive
relief.
In its answer, Borgelt denied that any
alterations to certain releases occurred
without the permission of Attorney Atterbury.
As for other releases, including the Dean
release, the answer alleged that Borgelt
requested permission to alter them from
Attorney
Atterbury,
believed
it
had
permission and forwarded the records
received to Attorney Atterbury. The records it
received in response to the altered Dean
release were duplicates of those originally
received by Attorney Atterbury. Borgelt
admitted that, through a clerical error, it
requested updated medical records from
U.W. Hospital using a release to which
Attorney Atterbury had objected; however, it
denied that any unauthorized records or
psychological records were received as a
result of this error, and alleged that all
records it did receive were forwarded to
Attorney Atterbury. The answer denied the
other allegations in the complaint, asserted
various affirmative defenses and alleged the
action was frivolous and should be dismissed
under 814.025, Stats., with attorney fees
awarded. Liberty Mutual's answer denied
knowledge or information sufficient to form a
belief as to the allegations of the complaint,
and also asserted a number of defenses.

Without Hannigan's consent, the Borgelt


attorneys, or others under their supervision
and control, altered the scope of the
requested information in two of the releases,
both notarized, to include "psychological or
psychiatric records," inserted Hannigan's
initials next to this alteration, and copied the
altered forms, substituting the names of other
record holders. They then sent the copied and
altered releases to various providers, who, in
response, released Hannigan's medical
records, including his treatment records.
Borgelt altered a third release to Dean
Medical Center (the original of which was
witnessed but not notarized) to authorize the
release of Hannigan's treatment records, also
without Hannigan's consent, and received
Hannigan's treatment records in response.
Borgelt released the records it obtained in this
way to Liberty Mutual and others, and Borgelt
interfered with Hannigan's right to obtain his
patient health care and treatment records by
inducing providers who had received requests
from Hannigan to either withhold his records
from Hannigan or send them to Borgelt.
The complaint asserts that Borgelt violated
Hannigan's right to the confidentiality of his
patient health care records under 146.81-84,
Stats., and to the confidentiality of his
treatment records under 51.30, Stats., by
accessing or attempting to access Hannigan's
records without his consent, releasing those
records to others, putting them into public
records, and tortiously interfering with his
right to control the disposition of information
in the records; and that Liberty Mutual
violated his rights under those statutes by
securing and possessing those records. The
complaint also asserts claims for invasion of
privacy under 895.50, Stats. Hannigan seeks
compensatory damages, exemplary damages
under 146.84(1)(b) and 51.30(9)(b) for each
knowing and willful violation of those

Both Borgelt and Liberty Mutual moved for


summary judgment and the court granted
judgment in their favor, dismissing the
complaint. The court concluded that the plain
language of 146.81-84 and 51.30, Stats.,
applies only to health care providers or
treatment facilities. The court concluded that
Hannigan had no privacy right in his health
care and treatment records because he
initiated the prior lawsuit, the judge in that
lawsuit had ruled that records of both
Hannigan's mental and physical health were
relevant and admissible, and, without a
protective order, those records were public.
The court decided that Borgelt had the right
to share the records it obtained in discovery
-2-

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 3 of 18 Document 40-12

Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

in that suit with its client, Liberty Mutual. The


court also apparently decided there were no
factual disputes concerning the altered
releases, Attorney Atterbury had agreed to the
alterations, and Borgelt was entitled to rely on
Hannigan's attorney's agreement. The court
ruled that all claims were frivolous under
either 814.025 or 895.50(6), Stats., because
they had no basis in law and equity and were
brought solely to harass Borgelt and Liberty
Mutual. It therefore awarded attorney fees to
the respondents with the amount and the
apportionment between Hannigan and his
counsel to be determined at a later hearing.
The amount and apportionment of attorney
fees are not before us on this appeal.

different senses by reasonably well-informed


persons. State v. Sample, 215 Wis.2d 487,
495, 573 N.W.2d 187, 191 (1998). If a statute
is ambiguous, we look to the scope, subject
matter, history, context and object of the
statute in order to ascertain legislative intent.
See id. Whether a statute is ambiguous is a
question of law. Awve v. Physicians Ins. Co.,
181 Wis.2d 815, 822, 512 N.W.2d 216, 218 (Ct.
App.
1994).
We consider 146.81-84 and 51.30, Stats.,
together because the language is similar as it
relates to the issue we must resolve.
Section146.82(1) provides that "[a]ll patient
health care records shall remain confidential
[and] ... may be released only to the persons
designated in this section or to other persons
with the informed consent of a patient or of a
person authorized by the patient...."(FN4)
Subsections (2) and (3) then describe those
situations in which patient health care
records may be released without informed
consent, none of which are applicable here.
Section 146.83(1) governs the conditions
under which the patient, or other person
upon submitting an informed consent, may
inspect and copy the patient's records;
subsec. (2) requires health care providers to
inform patients of this statute; subsec. (3)
requires health care providers to keep records
concerning requests to inspect; and subsec.
(4) prohibits any person from falsifying,
concealing or destroying records. Section
146.84 provides for civil remedies and
criminal penalties: Violations related to
patient health care records. (1) Actions for
violations; damages; injunction. (a) A
custodian of records incurs no liability under
this paragraph for the release of records in
accordance with s. 146.82 or 146.83 while
acting
in
good
faith.
(b) Any person, including the state or any
political subdivision of the state, who violates
s. 146.82 or 146.83 in a manner that is
knowing and wilful shall be liable to any
person injured as a result of the violation for
actual damages to that person; exemplary
damages of $1,000 in an action under this

DISCUSSION
Section 146.81-84, Stats., (patient health care
records) and 51.30, Stats., (treatment
records)
We begin with the claims asserted for
violations of Hannigan's rights under 146.8184 and 51.30, Stats. The first question is
whether obtaining patient health care or
treatment records by altering the patient's
consent form without his or her permission
violates either statute. To resolve this
question we must construe the statutes, and
we do so independently of the trial court. See
Lincoln Sav. Bank, S.A. v. DOR, 215 Wis.2d
430, 441, 573 N.W.2d 522, 527 (1998). We
conclude that neither statute creates liability
in a civil action for this conduct.
The purpose of statutory interpretation is to
discern the legislative intent. We first
consider the language of the statute and, if
the language of the statute clearly and
unambiguously sets forth the legislative
intent, we will not look outside the statutory
language to ascertain the intent of the
legislature. Id. We also consider related
sections. See City of Milwaukee v. Milwaukee
County, 27 Wis.2d 53, 56, 133 N.W.2d 393,
395 (1965). A statute is ambiguous when it is
capable of being understood in two or more
-3-

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 4 of 18 Document 40-12

Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

paragraph.
(c) An individual may bring an action to
enjoin any violation of s. 146.82 or 146.83 or
to compel compliance with s. 146.82 or
146.83 and may, in the same action, seek
damages as provided in this subsection.
(2) Penalties. Whoever does any of the
following may be fined not more than $1,000
or imprisoned for not more than 6 months or
both:
(a) Requests or obtains confidential
information under s. 146.82 or 146.83 (1)
under
false
pretenses.
(b) Discloses confidential information with
knowledge that the disclosure is unlawful and
is not reasonably necessary to protect another
from
harm.
(c)
Violates
s.
146.83
(4).

for each violation, together with costs and


reasonable actual attorney fees as may be
incurred. It is not a prerequisite to an action
under this subsection that the plaintiff suffer
or be threatened with actual damages.
(c) An individual may bring an action to
enjoin any violation of this section or to
compel compliance with this section, and may
in the same action seek damages as provided
in this subsection. The individual may recover
costs and reasonable actual attorney fees as
may be incurred in the action, if he or she
prevails.
(10) Penalties. Whoever does any of the
following may be fined not more than $1,000
or imprisoned for not more than 6 months or
both: (a) Requests or obtains confidential
information under this section under false
pretenses.
(b) Discloses confidential information under
this section with knowledge that the
disclosure is unlawful and is not reasonably
necessary to protect another from harm.
(c) Violates sub. (4) (dm)1., 2. or 3. [same
language
as
146.83(4)
prohibiting
falsification, concealment, destruction or
damage
of
records].

Section 51.30, Stats., establishes similar, and


additional, restrictions with respect to
treatment records. These records are
confidential and privileged and may be
released only to persons specifically
designated in the statute or to other
designated persons with informed consent,
see 51.30(4)(a)-(b), and the definition of
informed consent is substantially the same.
See 51.30(2). The remedy and penalty
subsections
of
51.30
provide:

Hannigan and the amicus, Aids Network


Legal Services, argue that because 146.82 and
51.30(4), Stats., require that a person other
than the patient must provide the patient's
informed consent in order to obtain the
records of another (absent exemptions that
do not apply here), it is a violation of those
provisions to request or obtain records with a
consent form that has been altered without
the patient's permission. They point out that
because 146.84(1)(b) and 51.30(9)(b), Stats.,
make "any person" liable for a knowing and
willful violation of the preceding sections,
rather than any "health care provider," a term
which is defined in 146.81, Stats., the statutes
plainly mean that persons who are not health
care providers may be liable in a civil action.
Borgelt and Liberty Mutual, on the other
hand, contend that both statutes are plainly
directed only to health care providers and
their record custodians, specifying when they

(9) (a) Any person, including the state or any


political subdivision of the state, violating this
section shall be liable to any person damaged
as a result of the violation for such damages
as may be proved, together with exemplary
damages of not less than $200 for each
violation and such costs and reasonable
actual attorney fees as may be incurred by the
person damaged. A custodian of records
incurs no liability under this paragraph for
the release of records in accordance with this
section while acting in good faith.
(b) In any action brought under par. (a) in
which the court determines that the violator
acted in a manner that was knowing and
wilful, the violator shall be liable for such
damages as may be proved together with
exemplary damages of not less than $1,000
-4-

Case 2:15-cv-01516-NJ Filed 04/14/16 Page 5 of 18 Document 40-12

Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

must and must not release records and other


obligations they have with respect to the
records. Therefore, they contend, "any
person"
violating
those
sections
in
146.84(1)(b) and 51.30(9)(b) can refer only to
health care providers and their record
custodians.

reasonably be interpreted to reach conduct in


requesting or obtaining records of others, as
well as conduct in disclosing those records.
We also observe that the penalty section of
each statute provides for a fine and
imprisonment for anyone who "[r]equests or
obtains confidential information ... under
false
pretenses,"
146.84(2)(a)
and
51.30(10)(a), Stats., thus expressly addressing
conduct in requesting records. Because this
reference appears in the penalty sections
only, one reasonable construction is that the
civil remedies apply only to record holders
who improperly release records or deny
access. However, this reference could also be
reasonably interpreted to support Hannigan's
view that persons who request or obtain
records without informed consent as defined
in the statute (when no statutory exemptions
apply) are subject to civil remedies as well as
to the penalties specified in 146.84(2)(a) and
51.30(10)(a), if applicable. We therefore
conclude that the statutes are ambiguous on
this point, and we examine first the scope and
subject matter of the statutes as an aid in
resolving
the
ambiguity.

We do not agree with the trial court or the


respondents that the statutes plainly govern
the conduct only of health care providers and
their record custodians. There are express
provisions in 146.82-83 and 51.30, Stats., that
govern the conduct of persons who are not
necessarily either. For example, 146.82(2)(b)
prohibits "the recipient of any information"
received without informed consent because of
the statutory exemptions in para. (2)(a) from
disclosing that information without a court
order;(FN5)
and
146.83(4)
and
the
corresponding 51.30(4)(dm) prohibiting "any
person" from falsifying, concealing or
destroying records. The use of the "any
person" language in the civil remedies
sections of both statutes, rather than the
more restrictive "health care provider" or
"custodian" may reasonably be interpreted as
an indication that other persons may violate
the provisions of the statute and therefore
may be civilly liable under 146.84(1) and
51.30(9),
Stats.

As we have noted earlier, both 146.82-83 and


51.30, Stats., directly address in detail the
obligations and prohibitions of health care or
treatment providers, custodians of their
records, and persons who have received
records from these persons ("record
holders"); but none directly address conduct
in requesting records. This in itself is an
indication that the legislature intended to
address only the conduct of record holders in
these sections, not the conduct of persons
requesting records, and that it intended to
address the conduct of persons requesting
records only in the penalties sections,
146.84(2)(a) and 51.30(10)(a), Stats., and
only
as
there
provided.

However, it does not automatically follow that


persons who request or obtain records by
altering a consent form without the patient's
permission are civilly liable under 146.84(1)
and 51.30(9)(b), Stats. They are liable only if
that conduct violates 146.82-83 or 51.30
Stats. There are no provisions in any of these
sections that directly address the conduct of a
person in obtaining informed consent.
Nevertheless, the general statement that "all
... records shall remain confidential,"
146.82(1); accord 51.30(4)(a), and the
provision that a person (other than a patient
and statutorily designated individuals) may
inspect and receive copies of records "upon
submitting a statement of informed consent,"
146.83(1);
accord
51.30(4)(a),
could

We next examine the legislative history,


beginning with 51.30, Stats., which was
enacted in its present form by Laws of 1977,
ch. 428, 67. Section 51.30(9) as originally
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

enacted was substantially the same as it is


today.(FN6) Subsection (10) contained a
penalty only for requesting or obtaining
confidential
information
under
false
pretenses, what is now 51.30(10)(a). As
originally drafted, subsec. (10) contained
another subsection, providing that "any
person who violates the provisions of this
section shall forfeit not more than
$5000."(FN7) This subsection was eliminated
during the drafting process, but we have been
unable to discover any materials explaining
the reason. Arguably the initial inclusion of
this second and separate subsection is an
indication that "requesting or obtaining
confidential
information
under
false
pretenses" was not considered a violation of
other provisions of 51.30, but that is
somewhat speculative since we do not know
why the second subsection was removed. We
are persuaded, though, that establishing a
criminal penalty only for requesting or
obtaining confidential records under false
pretenses is an indication that the legislature
did not consider that such conduct was
subject to the civil remedies in subsec. (9) as a
violation of other subsections of 51.30. We
come to this view because we cannot see a
basis for singling out this conduct for criminal
penalties, when the release of records by
treatment providers and record custodians in
violation of 51.30, coupled with the requisite
criminal intent, could be equally egregious.
The more reasonable interpretation of
51.30(9) and (10) as enacted in 1977 is that
the legislature intended that persons who
violated the provisions of 51.30 willfully and
knowingly were subject to exemplary
damages (as well as actual damages if any,
and costs and attorney fees); but persons who
requested or obtained confidential records
under false pretenses were not included in
that group, and it was therefore necessary to
establish a penalty specific to them.

Stats., was enacted by 1991 Wis. Act 39,


2667n, and the final wording was the result of
a gubernatorial veto.(FN8) As passed by the
legislature, 146.84(1)(a)-(b) were patterned
after 51.30(9)(a)-(b), Stats.,(FN9) in that
146.84(1)(a) addressed violations generally
and para. (b) addressed "knowing and willful"
violations, and both paragraphs provided for
exemplary damages, actual damages, costs
and reasonable attorney fees. 1991 Wis. Act
39, 2667n. However, there was a significant
difference from 51.30(9) in that the
exemplary damage amounts in 146.84(1)(a)
and (b) were each specifically tied to "each
release of information in violation of s.
146.82, each denial of the right to inspect or
receive copies under s. 146.83(1) and each
failure to provide a statement under s.
146.83(2)." Section 146.84(2) provided in one
paragraph for a forfeiture for "any person
who violates s.146.82 or 146.83," and in a
second
paragraph
for
a
fine
and
imprisonment for "any person who violates s.
146.82 ... in a manner that is knowing and
wilful or any person who requests or obtains
confidential information under s. 146.82 or
146.83(1) under false pretenses...." Id.
Thus the version of 146.84, Stats., as
originally passed by the legislature, shows
that the legislature made distinctions between
acts of requesting or obtaining confidential
information under false pretenses, on the one
hand, and violations of 146.82-83, Stats., on
the other hand. Furthermore, an act of
requesting
or
obtaining
confidential
information under false pretenses was not
among the specified conduct in either of the
paragraphs in the subsection governing civil
remedies, and it was distinguished, in the
penalty subsection, both from violations of
146.82-83 and from knowing and willful
violations of 146.82. We consider this a
persuasive indication that the legislature did
not consider that requesting or obtaining
confidential
information
under
false
pretenses was a violation of 146.82-83.

Turning now to patient health care records,


146.81-83, Stats., were originally enacted by
Laws of 1979, ch. 221, 649t, with no provision
for remedies or penalties. Section 146.84,

This indication of legislative intent is not


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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

vitiated by the governor's partial veto of


146.84, Stats. The governor deleted most of
para. (1)(a)(FN10) and all of para. (2)(a)
because he did not believe "penalties should
apply in cases of accidental violations of
confidentiality"; he deleted the specific
violations of 146.82-83, Stats., enumerated in
para. (b), because he did not want damages
awarded for each violation, due to his concern
for "possible misinterpretation or abuse as a
result of repeated similar requests"; and he
deleted the provision for exemplary damages
without actual damages because he did not
want "the record holder [to be exposed] to the
possibility
of
frivolous
or
nuisance
litigation."(FN11) These explanations do not
suggest that the governor viewed violations of
146.82 as encompassing more than "release of
information," or viewed violations of
146.83(1) and (2) as encompassing more than
"denial of the right to inspect and or receive
copies." Moreover, his explanation for
deleting the provision that no actual damages
are required suggests that he viewed the
"record holder" as the only potential violator.
And he did not remove the distinction in para.
(2)(b) between violations of 146.82, Stats.,
and requesting or obtaining information
under
false
pretenses.(FN12)

egregious conduct of persons in requesting


records by imposing criminal penalties on
that conduct. Based on the scope, subject
matter and legislative history, we are
persuaded that this is what the legislature,
and the governor acting in his legislative
capacity,
intended.(FN13)
Tortious Interference with Hannigan's Access
to
His
Records
Hannigan argues that he has a statutory right
to access to his own records, and that Borgelt
tortiously interfered with this right by
inducing health care providers to withhold
access from him.(FN14) The only specific
provisions of the statutes that appear
arguably applicable are 146.83(4)(b) and
51.30(4)(dm)2, Stats., which state that "no
person" may "conceal or withhold a ...
record," either "with intent to prevent or
obstruct an investigation" or "with intent to
prevent its release to [the patient]." As we
have discussed above, we do not construe this
subsection as applying only to health care or
treatment providers or to custodians of their
records. The plain language could also apply
to any recipient of the records. The issue is
whether "concealing or withholding" for the
prescribed statutory purposes encompasses
inducing others to conceal or withhold. We
conclude that the plain language of the statute
does not include inducing others to conceal or
withhold. Examples abound where the
legislature has expressly addressed the
inducing of conduct, in addition to engaging
in the conduct itself. See, e.g., 49.49(3),
66.293(11)(b)2 and 103.53(j), Stats. The
legislature could have chosen such language
here, but did not. See Village of De Forest v.
County of Dane, 211 Wis.2d 804, 810, 565
N.W.2d 296, 299 (Ct. App. 1997).

Finally, we consider the object of the statutes.


We agree with Hannigan and amicus that the
object is to protect the confidentiality of
health care and treatment records, and we
agree this is an important public policy. It
may also be, as they contend, that imposing
civil liability for altering consent forms
without the patient's approval is necessary for
a complete implementation of this policy.
However, we do not agree that we should
therefore interpret the statutes to do so. The
manner and extent of implementation of
public policy objectives identified by the
legislature are for the legislature to decide,
not this court. Our job is to determine the
legislature's intent. The legislature could
reasonably decide to regulate the conduct of,
and impose civil liability on, only record
holders, and to address only the most

Section 895.50, Stats., (Right of Privacy)


We next consider whether the complaint
states a claim for relief against Borgelt or
Liberty Mutual under 895.50, Stats., for any
of the three types of invasion of privacy: (a)
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

Intrusion upon the privacy of another of a


nature highly offensive to a reasonable
person, in a place that a reasonable person
would consider private or in a manner which
is
actionable
for
trespass.
(b) The use, for advertising purposes or for
purposes of trade, of the name, portrait or
picture of any living person, without having
first obtained the written consent of the
person or, if the person is a minor, of his or
her
parent
or
guardian.
(c) Publicity given to a matter concerning the
private life of another, of a kind highly
offensive to a reasonable person, if the
defendant has acted either unreasonably or
recklessly as to whether there was a legitimate
public interest in the matter involved, or with
actual knowledge that none existed. It is not
an invasion of privacy to communicate any
information available to the public as a
matter
of
public
record.
Section
895.50(2).

intrusion alleged-obtaining patient health


care and treatment records without
permission-was not conducted in a manner
actionable for trespass; nor was the intrusion
in a "place," which we defined in Hillman v.
Columbia County, 164 Wis.2d 376, 392, 474
N.W.2d 913, 919 (Ct. App. 1991), to be
geographical, and not to include medical
records.
The amicus argues that Hillman is
distinguishable because the patient there was
an inmate in a correctional institution, and,
as a matter of constitutional law, prisoners
are entitled to less protection of their privacy
than persons who are not incarcerated.
However, Hillman's prisoner status was not
relevant to our conclusion that "place" plainly
means a geographical place and does not
include medical records. In addition to
making this same factual (prisoner/nonprisoner) distinction, Hannigan makes two
points which, he contends, should alter our
legal analysis in construing 895.50(2)(a),
Stats. First, in Hillman, we did not consider
other statutory protections against invasions
of privacy that are not confined to
geographical places, such as 134.43, Stats.,
relating to information on television
subscribers' viewing habits. Second, after we
decided Hillman, the supreme court decided
Woznicki v. Erickson, 202 Wis.2d 178, 549
N.W.2d 699 (1996), in which it held that,
because our statutory and case law has
consistently
recognized
the
legitimate
interests of citizens to privacy and the
protection of their reputational interests,
before a district attorney may, under the open
records law, release records pertaining to an
individual that implicates those interests, the
individual must be given notice and the
opportunity to litigate the release. Id. at 187,
193, 549 N.W.2d at 703, 705.(FN16) We do
not consider the merits of Hannigan's
arguments on these two points because we do
not have the power to overrule, modify or
withdraw language from our decision in
Hillman. See Cook v. Cook, 208 Wis.2d 166,
189, 560 N.W.2d 246, 255 (1997). Hillman

The trial court concluded that Hannigan has


no claim under these sections because he
initiated the personal injury lawsuit, putting
his health in issue, and the judge in that
lawsuit determined that his medical records,
including treatment records, were relevant to
that issue. It is true that initiating such a
lawsuit does waive the physician/patient
privilege as to communications relevant to or
within the scope of discovery. See
905.04(4)(c), Stats. However, it does not
automatically follow that a plaintiff has
thereby waived all claims for invasion of
privacy.(FN15) Each of the three privacy
claims addresses different conduct, which
may or may not be affected by the waiver of
the physician/patient privilege, and it is
necessary to analyze the allegations of the
complaint in light of the elements of each
claim.
Intrusion

in

Private

Place

We conclude the complaint does not state a


claim for relief under 895.50(2)(a), Stats.,
against either Borgelt or Liberty Mutual. The
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

controls and compels dismissal of the claims


against Borglet and Liberty Mutual under
895.50(2)(a).

law misappropriation, or right of publicity,


claim described its elements with the same
language used in 895.50(2)(b), we conclude
that the essence of the statutory claim and the
common law claim discussed in Hirsch is the
same: to protect the property interest in the
publicity value of one's name (or portrait or
picture) from commercial exploitation by
others.

Misappropriation
We also conclude the complaint states no
claim under 895.50(2)(b), Stats. Hannigan
argues that the dictionary definition of
"trade" includes profession, which includes
the profession of law, and, he contends, by
submitting altered notarized documents that
were purportedly signed by Hannigan and by
forging his initials, the Borgelt attorneys did
use Hannigan's name for purposes of their
trade without his consent. We reject this
argument because it stretches the boundaries
of this misappropriation claim beyond those
recognized by our supreme court in Hirsch v.
S.C. Johnson & Son, Inc., 90 Wis.2d 379, 387,
280 N.W.2d 129, 132 (1979). While the court
in Hirsch did not apply 895.50(2)(a) because
that statute was enacted after the events
giving rise to the claim occurred, it did state
that Hirsch would have a cause of action
under that paragraph for the use of his
nickname "Crazylegs" on a shaving gel
product without his permission. In explaining
why Hirsch had a cause of action under
common law, even though there was no
common law right in Wisconsin for certain
other privacy torts, the court explained:

This formulation of the statutory claim is also


consistent with the comments to Restatement
(Second) of Torts 652A, B, C and D (1977),
after which 895.50(2)(a), (b) and (c), Stats.,
are patterned (with some modifications).
Restatement (Second) of Torts 652C
provides: One who appropriates to his own
use or benefit the name of likeness of another
is subject to liability to the other for invasion
of
his
privacy.
As comment c to this section explains, "[i]n
order that there may be liability under the
rule stated in this Section, the defendant must
have appropriated to his own use or benefit
the reputation, prestige, social or commercial
standing, public interest or other values of the
plaintiff's name or likeness." Comment b to
this section notes that, unless a statute limits
the use of the plaintiff's name or likeness to
advertising or some similar commercial
purpose, the rule as stated in the Restatement
of Torts is not so limited. However, Wisconsin
has limited the tort by statute to commercial
purposes, adding "for advertising purpose or
for purposes of trade" to the rule as expressed
in the Restatement (Second) of Torts 652C.
Section895.50(2)(b). Because Hannigan has
alleged no publicity value of his name-that is,
no reputation, prestige, social or commercial
standing, public interest or other value of his
name-and no purpose of commercial
exploitation on the part of any defendant, the
allegations of the complaint are insufficient to
state
a
claim
under
895.50(2)(b).

[T]he right of a person to be compensated for


the use of his name for advertising purposes
or purposes of trade is distinct from other
privacy torts which protect primarily the
mental interest in being let alone. The
appropriation tort is different because it
protects primarily the property interest in the
publicity
value
of
one's
name.
Hirsch, 90 Wis.2d at 387, 280 N.W.2d at 132.
The court then cited a number of other
sources to emphasize this distinctive
characteristic of the misappropriation claim,
which it also called "the right of control of the
commercial aspects of one's identity." Id.
Because the court, in discussing the common

Public

Disclosure

of

Private

Facts

The complaint does, however, state a claim


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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

for relief against Borgelt under 895.50(2)(c),


Stats. There are four elements to this claim:
(1) publicity, (2) of private facts, (3) on a
matter that would be highly offensive to a
reasonable person, and (4) if the defendant
has acted unreasonably or recklessly
concerning whether there was a legitimate
public interest in the matter, or with actual
knowledge that one existed. Zinda v.
Louisiana Pac. Corp., 149 Wis.2d 913, 929-30,
440 N.W.2d 548, 555 (1989). "Publicity" in
this context means that "the matter is made
public by communicating it to the public at
large, or to so many persons that the matter
must be regarded as substantially certain to
become one of public knowledge." Id., citing
Restatement (Second) of Torts 652D cmt. a.
However, there is also authority for finding
publicity "where a special relationship exists
between the plaintiff and the `public' to
whom the information has been disclosed."
Hillman, 164 Wis.2d at 395 n.10, 474 N.W.2d
at
920.

complaint states a claim only against Borgelt.


We next examine the materials submitted by
the parties to determine if there are issues of
fact material to the resolution of this claim
against Borgelt.(FN17) It is undisputed that
the judge in the personal injury action ruled
that the medical records collected and filed by
the defendants in that action were relevant
and admissible and allowed their admission
into evidence; and there was no appeal in that
action.(FN18) It is also undisputed that
Borgelt provided Hannigan's medical records
to their experts and consultants, including
Hannigan's psychological records from Dean
Clinic. As for whether Borgelt provided copies
of Hannigan's records to Liberty Mutual,
Newcomb avers that Borgelt did not provide
Hannigan's records to Liberty Mutual. The
Liberty Mutual representative who handled
the claim avers that his file does not contain
any psychiatric records of Hannigan but does
contain a medical records chronology that
references some mental health care at Dean
in 1994; however neither the medical
chronology nor any confidential information
in the file was provided to any outside
individual or insurance company.(FN19)
Hannigan avers that when he was reviewing
the court file in April 1997 he saw a letter on
Borgelt stationary with Newcomb's signature,
with a copy of his 1967 University of
Wisconsin Hospital and Clinic psychiatric
report, "with verification that copy was sent
to Liberty." He returned to obtain a copy at
the request of his attorney in this action, but
was unable to locate this document.(FN20)
Liberty Mutual contends that Hannigan's
affidavit does not create a genuine factual
dispute because he can provide no document
to show that he saw what he avers, while
Borgelt argues that the cover letter that
indicated Liberty was sent a copy did not
reflect that any enclosures were included. We
assume without deciding that there is a
material dispute as to whether Borgelt
provided Hannigan's medical records,
including his psychological records, to Liberty
Mutual.

The allegations in the complaint, construed


liberally, are sufficient to meet these four
elements as to Borgelt. A person's health care
and treatment records are generally
considered private and confidential, see
146.82 and 51.30(4), Stats., and thus may
constitute "private" facts. The Borgelt
attorneys allegedly obtained Hannigan's
records without his consent and gave them to
Liberty Mutual, to others, and put them into
the public record. This is sufficient to meet
the "publicity" requirement at the complaint
stage. See id. at 395, 474 N.W.2d at 920 (oral
communication among numerous employees
and inmates of a jail of a person's AIDS
infection sufficient to constitute "publicity" at
the pleading stage). The highly offensive
nature
of
this
disclosure,
and
unreasonableness or recklessness concerning
whether there was a legitimate public interest
in his records, may be inferred from the
complaint, liberally construing the allegations
in Hannigan's favor. However, there is no
allegation that Liberty Mutual gave publicity
to Hannigan's records. Therefore the
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

his records in violation of 895.50(2)(c) by


presenting them to the court or the jury or
placing
them
in
the
court
file.

Hannigan asserts that Borgelt's placement of


his records in the public court files constitutes
publicity, and that it is a jury question
whether that is highly offensive. However, he
cites no authority for this proposition, and he
overlooks the privilege that applies to
attorneys
in
judicial
proceedings.
Section895.50(3), Stats., states that the right
of privacy is to be interpreted in accordance
with the "developing common law of privacy,
including
defenses
of
absolute
and
conditional privilege." In Zinda, we followed
Restatement (Second) of Torts 652G which
provides that the Restatement's rules on
conditional privilege to publish defamatory
matter apply to the publication of any matter
that is an invasion of privacy. See Zinda, 149
Wis.2d at 931, 440 N.W.2d at 556. In this
case, we follow Restatement (Second) of Torts
652F (1977), which provides that the absolute
privileges to publish defamatory matter
stated in 583-592A of the Restatement of
Torts also apply to the publication of any
matter that is an invasion of privacy.
Restatement (Second) of Torts 586 (1977)
provides:

With respect to the disclosure to Liberty


Mutual (which we are assuming occurred for
purposes of appeal because we are assuming
there is a genuine issue of fact on this point)
and to Borgelt's experts, we conclude that
these disclosures do not constitute "publicity"
within the meaning of 895.50(2)(c), Stats.
Disclosure to these persons for the purposes
established by the undisputed facts do not
constitute communication "to the public at
large, or to so many persons that the matter
must be regarded as substantially certain to
become one of public knowledge." Hillman,
164 Wis.2d at 394, 474 N.W.2d at 920. It is
true that some courts have found publicity
when there was a disclosure to a small group
of people who had a special relationship with
the plaintiff (when the plaintiff is not a public
figure) such as the plaintiff's fellow
employees, church members, family members
or neighbors. See, e.g., Miller v. Motorola,
Inc., 560 N.E.2d 900, 903 (Ill. App. 1990).
However, Liberty Mutual's and Borgelt's
experts do not have such relationships with
Hannigan.

An attorney at law is absolutely privileged to


publish defamatory matter concerning
another in communications preliminary to a
proposed judicial proceeding, or in the
institution of, or during the course and as a
part of, a judicial proceeding in which he
participates as counsel, if it has some relation
to
the
proceeding.

Attorney

Fees-Frivolous

Claims

Hannigan challenges the trial court's


determination that all his claims were without
a basis in law and equity and were brought for
purposes of harassment. The court addressed
these issues as to the privacy claims under
895.50(6), Stats., and as to the other claims
under 814.025, Stats. The provisions of each
of these statutes permitting the award of
attorney fees for frivolous actions or claims
are substantially the same.(FN21) The
determination whether a party or attorney
knew, or should have known, that a claim is
without reasonable basis in law or equity and
could not be supported by a good faith
argument for an extension, modification or
reversal of existing law presents a mixed
question of law and fact. Jandrt v. Jerome

We conclude that this privilege applies to


Hannigan's claim against Borgelt under
895.50(2)(c). It is undisputed that all the
health care records and treatment records
concerning Hannigan that were placed in the
court files or presented to the court or the
jury in the personal injury proceeding were
determined to be relevant and admissible by
the presiding judge. We therefore conclude
that, as a matter of law, Borgelt has an
absolute privilege in defense of Hannigan's
claim that Borgelt attorneys gave publicity to
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

Foods Inc., No. 98-00885, slip op. at 13 (Wis.


July 7, 1999). What a reasonable party or
attorney knew or should have known with
regard to the facts require the trial court to
determine what those facts were. Id. We do
not overturn findings of fact unless they are
clearly erroneous. Id. However, the legal
significance of those findings of fact, in terms
of whether those facts would lead a
reasonable attorney or litigant to conclude the
claim is frivolous, presents a question of law,
which we review de novo. Id. at 14. Any
doubts about the reasonableness of a claim is
resolved in favor of the attorney or party
subject to the motion for sanctions. Id. at 19.

determinations under 895.50(6) and 814.025,


Stats., must be reversed and remanded for the
following reasons. First, the party against
whom a claim of frivolousness is made must
have notice and an opportunity to respond.
See Swartwout v. Bilsie, 100 Wis.2d 342, 356,
302 N.W.2d 508, 517 (Ct. App. 1981).
Although Borgelt alleged in its answer that
the complaint was frivolous and asked for
attorney fees, its motion for summary
judgment did not ask for attorney fees. In its
brief in support of its motion it did briefly
address 895.50(6), but we conclude that
Borgelt's motion, submissions and briefs do
not provide adequate notice that it was asking
the court to decide that all of Hannigan's
claims were frivolous at the same time that it
decided the motion for summary judgment.
We reach the same conclusion with respect to
Liberty Mutual. Liberty Mutual did not ask
for attorney fees on the ground of
frivolousness in its answer, nor in its motion
for summary judgment, and it addressed
895.50(6) only briefly in its brief in support of
that motion. Hannigan's briefs opposing
summary judgment were extensive but
addressed the merits, not attorney fees. The
record does not reflect that Hannigan was
provided any further opportunity to address
the question of frivolousness before the trial
court issued its decision and order granting
summary judgment, in which it decided that
the privacy claims were frivolous under
895.50(6) and all other claims were frivolous
under
814.025.

Whether a party or counsel acted in bad faith


and solely for the purpose of harassing or
maliciously injuring another is analyzed
under a subjective standard. Stern v.
Thompson & Coates, Ltd., 185 Wis.2d 220,
235-36, 517 N.W.2d 658, 663 (1994). The
court must determine what was in the
person's mind and whether his or her actions
were deliberate or impliedly intentional with
regard to harassment or malicious injury. Id.
The findings must be specific. Id. at 236, 517
N.W.2d at 664. The requirement that the
"sole" motivation be harassment or malicious
injury is a "high standard [that] typically
would require a finding of bad faith based
upon some statements and actions, including,
for example, threats." Id. at 239-40, 517
N.W.2d at 665. This inquiry also involves a
mixed question of fact and law. Id. at 236, 517
N.W.2d at 664. Since the inquiry is subjective
and not generally susceptible to direct proof,
the state of mind of the person must be
inferred from the acts and statements of the
person in view of the surrounding
circumstances. Id. at 236-37, 517 N.W.2d at
664. A determination of frivolousness on this
ground must be based on an evidentiary
foundation separate from that supporting
frivolousness due to lack of a reasonable basis
in law or equity. Id. at 239, 517 N.W.2d at
665.
We

conclude

that

the

trial

Second, summary judgment is not the


appropriate methodology for resolving
determinations of frivolousness when there
are disputed issues of fact. Kelly v. Clark, 192
Wis.2d 633, 653, 531 N.W.2d 455, 461 (Ct.
App. 1995). We conclude that an evidentiary
hearing is necessary in this case to resolve
disputed issues of fact concerning what
Hannigan and his attorney knew or should
have known and what their motives
were.(FN22) The fact that there were no
genuine factual disputes material to the issues
we have decided on this appeal does not mean

court's
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

that there were no material factual disputes


material to the issue of frivolousness. Without
addressing each of the instances that the trial
court cited as examples of misstatements or
falsehoods by Hannigan or his counsel, we
simply observe that, at the very least, some
required the resolution of credibility issues or
the drawing of competing inferences from
undisputed facts, functions that cannot
properly be performed without an evidentiary
hearing.(FN23)

We
therefore
reverse
the
court's
determination regarding frivolousness, and
remand for an evidentiary hearing and such
other proceedings as the court may consider
appropriate consistent with this opinion.
By the Court.-Judgment affirmed in part;
reversed in part and cause remanded with
directions.
Not recommended for publication in the
official
reports.

Third, the trial judge referred to his "personal


awareness of Newcomb's legal abilities and
behavior during trial proceedings," stated that
he "holds the highest respect for her," and
stated that "Borgelt, Powell is a well-known
and well respected law firm and has been for
many years." It appears that this was a factor
that influenced the court's decision that the
claims were frivolous. A trial court sitting as
fact finder may derive inferences from the
testimony and take judicial notice of a fact
that is not subject to reasonable dispute, but
it may not establish an adjudicative fact based
on his or her personal experience. State v.
Peterson, 222 Wis.2d 449, 458, 588 N.W.2d
84,
88
(Ct.
App.
1998).

Notes:
(FN1) Section 146.81(4), Stats., defines
patient health care records as:(4) "Patient
health care records" means all records related
to the health of a patient prepared by or
under the supervision of a health care
provider, ... but not those records subject to s.
51.30....
Section51.30(1)(b), Stats., defines treatment
records as:(b) "Treatment records" include
the registration and all other records
concerning individuals who are receiving or
who at any time have received services for
mental illness, developmental disabilities,
alcoholism, or drug dependence which are
maintained by the department, by county
departments under s. 51.42 or 51.437 and
their staffs, and by treatment facilities.
The parties dispute whether any of
Hannigan's records are treatment records.
For purposes of our decision, we assume
without
deciding
that
some
are.

Finally, the court's decision that the claims


had no reasonable basis in law or equity were
based, at least in part, on legal analyses that
we have concluded were not correct. We have
concluded that Hannigan's claims for a
violation of 146.81-84 and 51.30(6) Stats.,
because of the manner in which Borgelt
allegedly requested or obtained the release of
Hannigan's records was a reasonable
construction of the statutes and that
146.83(4) and 51.30(4)(dm) apply to persons
in addition to health care and treatment
providers and custodians of their records,
specifically, persons who receive records from
the forgoing. We have also decided that the
bringing of a personal injury lawsuit putting
one's health in issue does not, in itself, mean
that there can be no claim under 895.80,
Stats., with respect to one's heath care or
treatment
records.(FN24)

(FN2) We use "Borgelt" to refer to the law


firm and the individual attorneys, collectively,
and "the Borgelt attorneys" to refer to the two
attorneys.
(FN3) We review summary judgments de
novo, employing the same methodology as
the trial court. Green Spring Farms v.
Kersten, 136 Wis.2d 304, 315, 401 N.W.2d
816, 820 (1987). The first inquiry is whether
Hannigan's complaint states a claim or claims
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

for relief, and at this stage, we take all facts


and all reasonable inferences from those facts
as true. Id. Only if the complaint does state a
claim for relief do we consider the
submissions of the parties in support of and
in opposition to the motion to determine if
these are genuine issues of material fact, and,
if there are not, which party is entitled to
judgment as a matter of law. Id.

(FN6) The amount of exemplary damages has


increased; originally it was not less than $500
nor more than $1,000 for each violation.
Laws
of
1977,
ch.
428,
67.
(FN7) Legislative Reference Bureau (LRB)
Draft of 1977 AB 898 (LRB-1257/2).
(FN8) Following are the relevant parts of the
version of 146.84, Stats., originally passed by
the legislature, with the line-through portions
showing
the
governor's
veto.

(FN4) Informed consent is defined in


146.81(2), Stats.:(2) "Informed consent"
means written consent to the disclosure of
information from patient health care records
to an individual, agency or organization that
includes all of the following: (a) The name of
the patient whose record is being disclosed.
(b) The type of information to be disclosed.
(c) The types of health care providers making
the
disclosure.
(d) The purpose of the disclosure such as
whether the disclosure is for further medical
care, for an application for insurance, to
obtain payment of an insurance claim, for a
disability determination, for a vocational
rehabilitation evaluation, for a legal
investigation or for other specified purposes.
(e) The individual, agency or organization to
which
disclosure
may
be
made.
(f) The signature of the patient or the person
authorized by the patient and, if signed by a
person authorized by the patient, the
relationship of that person to the patient or
the
authority
of
the
person.
(g) The date on which the consent is signed.
(h) The time period during which the consent
is
effective.

146.84 Violations related to confidentiality of


and patient access to health care records. (1)
Actions for violations; damages; injunction.
(a) Except as provided under par. (b), any
person, including the state or any political
subdivision of the state, violating s. 146.82 or
146.83 shall be liable to any person injured as
a result of the violation for actual damages to
that person, exemplary damages of not less
than $200 for each release of information in
violation of s. 146.82, each denial of the rights
to inspect or receive copies under s. 146.83(1)
and each failure to provide a statement under
s. 146.83(2), and costs and reasonable actual
attorney fees incurred in an action for
damages under this paragraph. A custodian of
records incurs no liability under this
paragraph for the release of records in
accordance with s. 146.82 or 146.83 while
acting
in
good
faith.
(b) Any person, including the state or any
political subdivision of the state, who violates
s. 146.82 or 146.83 in a manner that is
knowing and wilful shall be liable to any
person injured as a result of the violation for
actual damages to that person; exemplary
damages of not less than $1,000 for each
release of information in violation of s.
146.82, each denial of the rights to inspect or
receive copies under s. 146.83(1) and each
failure to provide a statement under s.
146.83(2); and costs and reasonable actual
attorney fees incurred by the person in an
action under this paragraph. It is not a

(FN5) Rather than a separate provision in


51.30, Stats., paralleling 146.82(2)(b), Stats.,
certain of the provisions in 51.30(4)(b) for
release without informed consent provide
that the information will remain confidential
after release, see, e.g., subdivisions (4)(b)1, 2,
3, 5; and the regulations the department is
authorized to promulgate further regulate the
use of the information by an authorized
recipient. See, e.g., Wis. Adm. Code HSS
92.03(1).
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

prerequisite to an action under this paragraph


by the person whose records are released in
violation of s. 146.82, who was denied the
right to inspect or receive a copy of records
under s. 146.83(1) or who was not provided a
statement required under s. 146.83(2) that he
or she suffer or be threatened with actual
damages.

Message on 1991 A.B. 91 (1991 Wis. Act 39),


provisions relating to "Privacy Council and
Access to Information," including 2667n, at
pages 32-33. The governor explained the
other deletions in para. (b) by stating that he
wanted to limit punitive damages to $1,000
so as not to encourage nuisance litigation,
and he did not believe that attorney fees, costs
and minimum damages were necessary
because actual damages provided sufficient
compensation.
Id.

(c) An individual may bring an action to


enjoin any violation of s. 146.82 or 146.83 or
to compel compliance with s. 146.82 or
146.83 and may, in the same action, seek
damages as provided in this subsection. The
individual may recover costs and reasonable
actual attorney fees incurred in an action
under this paragraph if he or she prevails.

(FN12) Sections 146.84(2) and 51.30(10),


Stats., were subsequently both amended by
1993 Wis. Act 445, 15 and 60, respectively, to
their present forms, at the same time that the
prohibitions in 146.84(4) and 51.30(4)(dm)
against falsifying, concealing and damaging
records were added. See id. at 14 and 58. We
have been able to uncover nothing regarding
this legislative change that is pertinent to our
inquiry.

(2) Penalties. (a) Any person who violates s.


146.82 or 146.83 may be required to forfeit
not more than $200 for each violation.,
(b) Any person who violates s. 146.82, except
s. 146.82(2)(a)3, in a manner that is knowing
and wilful or any person who requests or
obtains confidential information under s.
146.82 or 146.83(1) under false pretenses may
be fined not more than $500 or imprisoned
not more than one year in the county jail, or
both.
1991
Wis.
Act
39,
2667n.

(FN13) We do not agree with Hannigan and


the amicus that Steinberg v. Jensen, 186
Wis.2d 237, 262, 519 N.W.2d 753 (Ct. App.
1994), rev'd on other grounds, 194 Wis.2d
439, 534 N.W.2d 361 (1995), supports their
construction. In Steinberg, the issue was
whether the trial court in a malpractice action
had properly permitted the plaintiff's treating
physicians to testify as defense experts after
they reviewed records, which the defendant
gave them, of health care the defendant had
provided the plaintiff. (We held the defendant
and his attorney had impermissible ex parte
contracts with the treating physicians. Id. at
244, 519 N.W.2d at 755. The supreme court
reversed. See Steinberg, 194 Wis.2d at 446,
534 N.W.2d at 363.) For purposes of the
appeal, we assumed the records were related
to the injuries that were the subject of the
lawsuit and had been properly obtained by
the defendants pursuant to the discovery
procedures of 804.10(2), Stats., with the
result that the patient lost her physician
privilege and, therefore, "the cloak of
confidentiality derived from 146.82(1), Stats."
Steinberg, 186 Wis.2d at 262, 519 N.W.2d at

(FN9) See Hannigan v. Sundby Pharmacy,


Inc., 224 Wis.2d 910, 922-23 n.6, 593 N.W.2d
52, 57 (Ct. App. 1999), discussing the
legislative history of 146.84, Stats., and its
relation
to
51.30,
Stats.
(FN10) The deletion in 146.84(1)(a), Stats.,
left only the present sentence-"A custodian of
records incurs no liability for the release of
records in accordance with 146.82-83, Stats.,
while acting in good faith." This has the
potentially confusing result of providing a
good faith exception when damages may only
be awarded for knowing and willful
violations.
(FN11) Governor Tommy Thompson, Veto
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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

762-63. In a footnote we observed that the


plaintiff contended that a portion of her
health care records was not voluntarily
disclosed to the defendants, that the
defendant's physician had, after suit was filed,
removed certain records from the hospital
where he had treated her without her
informed consent and delivered them to his
attorney. Id. at 262 n.13, 519 N.W.2d at 763.
We stated, consequently, "Dr. Jensen was
potentially liable in an action under
146.84(1)(b), Stats., adding that it was
unclear "whether [those records] were subject
to the physician-patient privilege or whether
they were discoverable under 804.10(2),
Stats.," were issues which the trial court had
to resolve. Id. Our statement on Dr. Jensen's
potential liability under 146.84(1)(b) does not
support Hannigan's position: as a health care
provider, Dr. Jensen's release of his patient's
records to his (Dr. Jensen's) attorney without
informed consent is a violation of the express
provisions
of
146.82.

We do not decide these questions because the


manner
in
which
Borgelt
obtained
Hannigan's records, or attempted to do so, is
not material to the claim under 895.50(2)(c),
Stats. For the same reason, we do not decide
the legal propriety of the manner in which,
the submissions show, Borgelt attempted to
obtain agreements to modify the original
consent forms: a letter to Attorney Atterbury
proposing particular changes to an original
and stating that if no objection is received by
a certain date, Borgelt will assume the
changes are acceptable and will make the
changes. However, we do observe that this
method appears to have either created or
contributed to some of the disputes that gave
rise
to
this
lawsuit.

(FN16) More recently in Milwaukee Teachers


Educ. Ass'n v. Milwaukee Bd. of Sch. Dirs.,
___ Wis.2d ___, ___, 596 N.W.2d 403, 404
(1999), the court extended Woznicki to
custodians other than district attorneys.

(FN18) Newcomb makes these averments in


her affidavit and none of the materials
submitted by Hannigan-his affidavits and
Atterbury's
affidavit-dispute
these
statements. Newcomb also avers that neither
Hannigan nor Atterbury objected to the
admission of these records at trial or moved
that the record be sealed. Atterbury's affidavit
does not dispute these assertions. Hannigan's
does in that he avers in his first affidavit that
Judge Curtin sealed the "first file of treatment
records" in Newcomb's presence at an incamera hearing, and, during the following
months when he (Hannigan) examined the
case files and discovered additional
confidential materials, he requested they be
sealed, writing on April 20, 1997, to Judge
Curtin requesting that all records in the case
file be sealed. Hannigan also avers that
during the trial, when Newcomb was crossexamining him, he objected to her possession
and use of his Dean Medical Center
psychiatric
report.

(FN17) There may be genuine issues of fact


concerning how Borgelt obtained the Dean
Clinic psychological records, whether that
was done with Hannigan's or his attorney's
consent, and whether he or his attorney
consented to the modification of other
consent forms Hannigan had already signed.

(FN19) This affidavit avers that in compliance


with insurance industry standards, certain
limited information on Hannigan's claim was
reported to the "Index System" in April 1994
which consisted of his name, address, date of
loss and description of the injury as "cervical
neck
strain
blurred
vision."

(FN14) The allegations of this claim apply


only to Borgelt, not to Liberty Mutual.
(FN15) Similarly this waiver of the privilege
does not necessarily waive all claims for
violations of 146.81-84 and 51.30, Stats., as
we indicated in Steinberg v. Jensen, 186
Wis.2d 237, 262 n.13, 519 N.W.2d 753, 763
(Ct. App. 1994), rev'd on other grounds, 194
Wis.2d 439, 534 N.W.2d 361 (1995), in a
different factual context. See footnote 13.

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Hannigan v Liberty Mutual (Wis. Ct. App., 1999)

research he had done before bringing this


case, the factual investigation, and the way he
viewed the facts he gathered in support of the
claims. Although this is part of the record
before us, we do not consider it in reaching
our decision because it was not before the
trial court when the court decided the motion
for summary judgment and made its decision
on frivolousness. Nevertheless, we observe
that the affidavit contains the type of
information that Hannigan and his attorney
are entitled to present to the court before the
court decides whether the respondents are
entitled to attorney fees. The affidavit also
demonstrates that the court will need to
resolve issues of credibility and conflicting
inferences from undisputed facts, which
cannot be resolved without an evidentiary
hearing.

(FN20) The next sentence of Hannigan's


affidavit is not complete, stating: "It also
appeared that some of the sealed...." Page two
ends at that point and page three begins a
next
numbered
paragraph.
(FN21) Section 895.50(6), Stats., provides:
(6) (a) If judgment is entered in favor of the
defendant in an action for invasion of privacy,
the court shall determine if the action was
frivolous. If the court determines that the
action was frivolous, it shall award the
defendant reasonable fees and costs relating
to
the
defense
of
the
action.
(b) In order to find an action for invasion of
privacy to be frivolous under par. (a), the
court must find either of the following:
1. The action was commenced in bad faith or
for
harassment
purposes.
2. The action was devoid of arguable basis in
law
or
equity.
Section 814.025, Stats., provides in part:
Costs
upon
frivolous
claims
and
counterclaims. (1) If an action ... commenced
or continued by a plaintiff ... is found, at any
time during the proceedings or upon
judgment, to be frivolous by the court, the
court shall award to the successful party costs
determined under s. 814.04 and reasonable
attorney
fees.
....
(3) In order to find an action ... frivolous
under sub. (1), the court must find one or
more of the following: (a) The action ... was
commenced, used or continued in bad faith,
solely for purposes of harassing or
maliciously
injuring
another.
(b) The party or the party's attorney knew, or
should have known, that the action ... was
without any reasonable basis in law or equity
and could not be supported by a good faith
argument for an extension, modification or
reversal
of
existing
law.

(FN23) As an aid for proceedings on remand,


we do decide that Hannigan's statement at
the beginning of his second affidavit that "I
am counsel of record in this case," does not
give rise to a reasonable inference that he or
his counsel were misleading or attempting to
mislead anyone, as the trial court apparently
determined. Hannigan's first and third
affidavits described himself as the plaintiff in
this action, as did numerous other pleadings
and submissions. And, in Hannigan's third
affidavit, he stated that the quoted phrase was
an error that occurred because he used, as a
model for his affidavit, a form given him by
his attorney, and he neglected to modify that
statement.
(FN24) We do not decide whether there are
other grounds for concluding that the claims
had no reasonable basis in law or equity.

(FN22) After the trial court entered its


decision and order on summary judgment,
Hannigan's attorney in this action submitted
a very detailed affidavit explaining the legal
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