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William John Joseph Hoge, IN THE

Plaintiff, CIRCUIT COURT FOR CARROLL COUNTY
MARYLAND
v.
Case No. 06-C-16-070789
Brett Kimberlin, et al.,
Defendants.

PLAINTIFF’S REPLY TO SCHMALFELDT’S OPPOSITION TO THE MOTION TO ALTER
OR AMEND JUDGMENT AS TO COUNT XII

COMES NOW William John Joseph Hoge and replies to Schmalfeldt’s

Opposition to the Motion to Alter or Amend Judgment as to Count XII. Mr. Hoge

states as follows:

The Court properly found that the Settlement Agreement referenced in Count

XII of Mr. Hoge’s Complaint is a valid contract and that Schmalfeldt breached that

contract.

Mr. Hoge’s Motion to Amend does not ask the Court to enforce any provisions

of the federal Copyright Act. Rather, it asks the Court to amend its finding that

Mr. Hoge failed to plead damages in Count XII of his Complaint. Moreover,

[t]o prevail in an action for breach of contract, a plaintiff must
prove that the defendant owed the plaintiff a contractual obligation
and that the defendant breached that obligation. It is not necessary
that the plaintiff prove damages resulting from the breach, for it is
well settled that where a breach of contract occurs, one may recover
nominal damages even though he has failed to prove actual
damages.

Taylor v. NationsBank, 365 Md. 166, 776 A.2d 645, 651 (2001), citations omitted. In

fact, Mr. Hoge did plead that he was damaged by loss of control of his copyrighted
works as a result of Schmalfedt’s infringing publications (Complaint, ¶ 86), and as a

matter of law, such infringement subjects a copyright holder to irreparable harm.

Christopher Phelps & Associates, LLC v. Galloway, 492 F.3d 532, 544 (4th Cir.

2007). Schmalfeldt’s admissions in his Answer prove that Mr. Hoge suffered actual

damages in the form of the irreparable harm resulting from infringement of his

copyrights.

Schmalfeldt’s Opposition fails to address the fact that Mr. Hoge did plead and

prove that he was damaged. Instead, Schmalfeldt tries to spin a disingenuous

interpretation of Mr. Hoge’s Motion to have a straw man to attack, but none of the

case or statute law Schmalfeldt cites is apposite to this case. Further, none of the

“facts” he tries to introduce in his Opposition relate to whether Mr. Hoge was

damaged. Thus, Schmalfledt has offered no reason why the Courts should not grant

Mr. Hoge’s Motion to Amend.

Given a finding that Mr. Hoge was damaged, the Court is faced with the

problem of setting an amount of money damages to be awarded. Mr. Hoge’s Motion

to Amend suggests that the Court look to the range of statutory damages set by

Congress in 17 U.S.C. § 504 for guidance in the matter. Congress did not intend

statutory damages under the Copyright Act to be punitive but to be a means of

compensating a copyright holder for his loss of control of his copyright. Mr. Hoge

has not asked the Court for an award of punitive damages against Schmalfeldt. He

has asked the Court to award compensation for the irreparable harm he has

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suffered in an amount that would be consistent with the recovery allowed under

federal law.

Given the Court’s findings that Schmalfeldt breached the Settlement

Agreement, it is clear that Mr. Hoge is entitled to compensation—if not for breach of

contract, then for copyright infringement. This Court should award damages for

Schmalfeldt’s breach of the Settlement Agreement as a matter of judicial economy

so that Mr. Hoge does not have to seek damages in a federal court.

Even after this Court found that the Settlement Agreement was a valid

contract and that Schmalfeldt had breached it, Schmalfeldt has continued to

publish infringing copies of Mr. Hoge’s copyrighted works, and Mr. Hoge continues

to suffer irreparable harm. Thus, the Court should grant the injunctive relief Mr.

Hoge seeks.

CONCLUSION

Mr. Hoge alleged, and the Court found, that the Settlement Agreement

referenced in Count XII was a valid contract and that Schmalfledt had breached its

terms. Because pro se pleadings should be liberally construed 1 and considering that

Mr. Hoge did allege damages in the form of loss of control of his copyrights, the

Court should reconsider and find that damages were properly pleaded as to Count

XII.

WHEREFORE, Mr. Hoge asks the Court to alter or amend its findings, verdict,

and judgment as to Count XII and

1 Simms v. State, 409 Md. 722, 976 A.2d 1012, 1018 (2009).

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i.) to find that Mr. Hoge properly pleaded and proved damages in

his Count XII by pleading of loss of control of his copyrights,

ii.) to award Mr. Hoge damages from Schmalfeldt of not less than

$200 per infringement for each act of infringement alleged in Count XII,

iii.) to enjoin Schmalfeldt from further publication of Mr. Hoge’s

copyrighted works without prior written permission, and

iv.) to grant such other relief as the Court may find just and proper.

Date: 12 September, 2017 Respectfully submitted,

William John Joseph Hoge, pro se
20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com

CERTIFICATE OF SERVICE

I certify that on the 12th day of September, 2017, I served copies of the
foregoing on the following persons:

William M. Schmalfeldt by First Class U. S. Mail to 2600 South Ocean Boulevard,
Myrtle Beach, South Carolina 29577

Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817

Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817

William John Joseph Hoge

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AFFIDAVIT

I, William John Joseph Hoge, solemnly affirm under the penalties of perjury
that the contents of the foregoing paper are true to the best of my knowledge,
information, and belief.

Date: 12 September, 2017
William John Joseph Hoge

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