Since John Hoge has submitted his request for dismissal of the Schmalfeldt vs. Hoge, et al Maryland State suit, I felt that it would behoove me to at least begin drafting my own, just in case the mayo-ed one actually figured out how to serve notice on an undead member of society. It turns out that I had a lot to say, some borrowed, some original, but all of it pretty devastating to the case at hand. I mean, after all, it *IS* a LOL suit. And it was fun to write, and all I have is FUN!
William M Schmalfeld Sr
William John Joseph Hoge et al
IN THE CIRCUIT COURT FOR HOWARD COUNTY, MARYLAND
Case # 13-C-15-102498 OT
DEFENDANT KRENDLER’S MOTION TO DISMISS
COMES NOW defendant Paul Krendler (ZOMBIE) and moves this Court to dismiss the above captioned matter for failure to state a claim upon which relief can be granted pursuant to Maryland Rule 2-322(b)(2). In support of this matter, ZOMBIE states as follows:
The instant complaint is an attempt to reanimate a suit filed by Plaintiff in U.S. District Court for the District of Maryland that was dismissed (Case No. 15-CV-00315), in part, for want of subject matter jurisdiction and in a fashion that brings to mind the reanimation of Frankenstein’s Monster in all of its mis-matched parts. As in that first attempt, Plaintiff again makes allegations that ZOMBIE did things that are not torts. As such, and for the simple matter that Defendant ZOMBIE is an undead person and thus not under the jurisdiction of courts of law as are demonstrably alive persons, these are not matters that are properly brought before this Court. Plaintiff also attempts to allege actual torts committed by ZOMBIE but in every instance he fails to properly allege the elements of said torts. Moreover, he fails to state any damages he has actually incurred, except that to his indomitable pride which has been stripped from him and burned in effigy before his very eyes according to his telling of this case. With no real damages articulated properly, he fails to state a claim upon which relief may be granted, and the instant lawsuit should be dismissed.
PLAINTIFF FAILS TO PROPERLY ALLEGE HARASSMENT, FALSE LIGHT,
INVASION OF PRIVACY AND DEFAMATION PER SE
Plaintiff’s claim of Harassment, False Light Invasion of Privacy and Defamation Per Se is defective in relation to ZOMBIE. Maryland requires that plaintiffs asserting this tort must make their arguments well pled. In the Instant Case, Plaintiff fails to state precisely what ZOMBIE has done to Plaintiff that resembles harassment, false light invasion of privacy or defamation per se. There is no real assertation that ZOMBIE has done anything except be an undead person who happens to have both a public blog and private blog – both of which irk Plaintiff so much that it causes him to blow gaskets every day. The private blog is referenced by Plaintiff as being mentioned by Defendant Eric Johnson (JOHNSON) in paragraph 64 of his complaint. Aside from this mention and stating that JOHNSON comments on ZOMBIE’s public blog, there is no cause of Harassment, False Light Invasion of Privacy and Defamation Per Se that this zombie can find within this section of Plaintiff’s complaint. Plaintiff fails to allege with particularity the elements of any such claim. Plaintiff has not alleged with particularity which statements supposedly made by ZOMBIE placed him in a false light. Additionally, he has not stated any actual damages or expenses incurred because of any alleged portrayal in a false light. Harassment is not a tort in and of itself. Neither is butthurt in the first degree, which seems to be Plaintiff’s actual claim against ZOMBIE and all defendants.
Given the utter lack of a single well-pleaded allegation of defamation or false light, the Court should dismiss Plaintiff’s First Cause of Action for failure to state a claim upon which relief can be granted pursuant to Maryland Rule 2-322(b)(2).
PLAINTIFF FAILS TO PROPERLY ALLEGE MALICIOUS PROSECUTION AND CIVIL CONSPIRACY
In the section beginning with paragraph 72, Plaintiff attempts to bring together a grand conspiracy between ZOMBIE (who plaintiff apparently believes is also Defendant Howard Earl (EARL)) and the other defendants and including many others not named in this Instant Lawsuit based on the existence of a members-only blog to which Plaintiff has not been granted access. The mere existence of this members-only site is enough to convince Plaintiff that there is a conspiracy to defame him. However, there is no proof given of this allegation. The blog in question could be about finding the best recipies for brain soufflé, posting knitting and crochet patterns, or any sort of mundane activity that Zombies and their friends find amusing and interesting. The problem is that the Plaintiff knows so many things that just aren’t so. Because he is not a member of this private blog, he has no idea what happens behind its closed doors and instead makes wild speculations that this court is supposed to grant him relief from because what he really wants is to be a part of this Zombie Club. The alleged proof of this conspiracy given by Plaintiff is a blog post on ZOMBIE’s public blog wherein ZOMBIE asks for information, however said information is not detailed. Plaintiff asserts that this alone proves the existence of the conspiracy against him, however he produces no evidence of this.
Plaintiff also asserts that the copyright agreement between Defendant William John Joseph Hoge (HOGE) and ZOMBIE also delineates a conspiracy in paragraph 77. Plaintiff describes the blog post in question that ZOMBIE assigned certain rights to HOGE as being defamatory in nature, however he neglects to mention that the post was a parody of a post Plaintiff made on his own blog, using HOGE and his non-party wife as the protagonist/antagonist. His feelings are hurt because someone dared to take his own words and turn them around upon him in a manner that mirrored what he did to defendant HOGE. Plaintiff believes that no one should be allowed to hurt his feelings because he is a special flower. If Plaintiff chooses to believe that ZOMBIE’s parody of Plaintiff’s post was “vile, obscene and defamatory,” ZOMBIE would put forth that Plaintiff should perhaps look more carefully at his original post and see that it was “vile, obscene and defamatory” and worthy of mockery, mockery that is completely covered by the First Amendment with respect for parodies of original works. ZOMBIE also thinks that Plaintiff should put on his big boy panties and take precisely what he dishes out, however ZOMBIE realizes that is not something this honorable court can order.
Plaintiff believes that ZOMBIE should not be allowed to remain anonymous and is correct in that the arrangement between HOGE and ZOMBIE was made to allow ZOMBIE to keep his anonymity yet still protect ZOMBIE’s interest in the blog post. After all, ZOMBIE might face ostracization from members of the community of alive persons if it is discovered that he is a brain-eating undead creature. ZOMBIE has no wish for live humans to run from him in fear should it become known that he is actually undead, and wishes to enjoy life, liberty and the pursuit of brains as much as non-humanly possible. This apparently puts quite the kink in Plaintiff’s knickers and causes him to froth at the mouth. Plaintiff fails to mention that the assignation of rights to the blog post to fellow defendant HOGE was made to allow HOGE to challenge Plaintiff when he took the blog post in its entirety and published it in a book that Plaintiff then put up for sale without obtaining permission from ZOMBIE. Plaintiff simply does not like being frustrated from doing whatever he thinks he can do. Being taken to task for his actions is apparently something Plaintiff cannot stand and therefore he has brought this suit in order to frustrate people from vigorously protecting their copyrights, effectively chilling their speech and robbing them of their intellectual property based on the say-so of his hurt feelings.
Based on the lack of anything but butthurt and certainly no provable tort of civil conspiracy against ZOMBIE, this charge of civil conspiracy should be dismissed with respect to him for failure to state a claim upon which relief can be granted pursuant to Maryland Rule 2-322(b)(2).
As to the charge of Malicious Prosecution, at no time has ZOMBIE actually brought forth information that caused charges to be pressed against Plaintiff, ZOMBIE has not sought a peace order against Plaintiff, nor has ZOMBIE sued Plaintiff in any court in this land or in the realm of the undead. As such ZOMBIE is not a part of any prosecution against Plaintiff and this charge should be dismissed with respect to him for failure to state a claim upon which relief can be granted pursuant to Maryland Rule 2-322(b)(2).
PLAINTIFF’S THIRD CAUSE OF ACTION DOES NOT MENTION ZOMBIE
Since Plaintiff’s Third Cause of Action does not mention ZOMBIE, it should be dismissed with respect to him for failure to state a claim upon which relief can be granted pursuant to Maryland Rule 2-322(b)(2)
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS NOT A CAUSE OF ACTION
Even if intentional infliction of emotional distress were a cause of action, Plaintiff simply does not allege its elements. In paragraph 89, he alleges that defendants began their course of action to defame him in 2012. ZOMBIE had not even heard of Plaintiff until late 2013 and did not begin posting on his public blog until 4/23/2014 and could therefore not be there at the start of this alleged conspiracy. ZOMBIE does not deny that he believes Plaintiff brings upon his own stress as he alleges ZOMBIE does. However this is not intentional infliction of distress by ZOMBIE, but rather by Plaintiff upon himself. In paragraph 90, Plaintiff alleges that ZOMBIE hosted an “Everybody Draw Bill Schmalfeldt Day” on his blog. Nothing could be further from the truth as it was hosted by the blog known as Kimberlin Unmask which is not connected with ZOMBIE’s blogs, and which Plaintiff’s own evidence supports. In paragraph 91 Plaintiff again alleges that ZOMBIE and EARL are one and the same. Again, ZOMBIE asserts that he is only ZOMBIE and that there is no credible evidence that ZOMBIE and EARL are the same person. Logically the two cannot be one and the same because EARL is a live human and ZOMBIE is a member of the undead. In Paragraph 92, Plaintiff alleges that ZOMBIE made disparaging comments about Plaintiff’s dying mother in March 2013. Again, ZOMBIE was not even aware of Plaintiff’s existence until the end of that year, let alone the death of his mother and could not have participated in the activities described in March of that year as he didn’t even begin actively posting on the internet until more than a full year later.
Nothing in the complaint properly alleges intentional or reckless behavior by ZOMBIE that was extreme or outrageous, except perhaps the idea Plaintiff has that ZOMBIE’s very existence is offensive to him and that he must therefore be erradicated. Plaintiff has not alleged, except in the most conclusory manner, any causal connection between ZOMBIE’s actions and any distress Plaintiff may have suffered. Nor has he established that any of his alleged distress rose above the level of extreme butthurt in the first degree – something that is not against the law and cannot be recovered on in a court of civil law. More fundamentally, Plaintiff has not properly alleged that ZOMBIE has committed any tortuous conduct. Under Maryland law, “intentional infliction of emotional distress is an element of damage, not an independent tort.” Hamilton v. Ford Motor Credit Co., 66 Md.App. 46 (1986). The Maryland Court of Appeals adds, “In Maryland, recovery of damages for emotional distress must arise out of tortious conduct.” Exxon Mobil Corp. v. Albright, 433 Md. 9303, 71 A.3d 30, 58 (2013). Since all of Plaintiff’s torts fail, he cannot recover for intentional inflection of emotional distress. However Plaintiff seems to believe that ACME LAW, a member of which Plaintiff is in poor standing, rises above the standards set by Maryland Courts and allows for Plaintiff to have these flights of fancy. ZOMBIE prays that this court will prick the balloon of Plaintiff’s ego in order to deflate it back down to the size it needs to be – at a normal human level.
Therefore, the Court should dismiss Plaintiff’s Fourth Cause of Action for failure to state a claim upon which relief can be granted pursuant to Maryland Rule 2-322(b)(2).
Plaintiff’s case is a muddled waste of perfectly good brains that does not present a well pleaded case. Instead, it is yet another way for him to maunder on about how much butthurt he suffers from the slings and arrows allegedly thrown by the defendants – none of which arises to the level of actionable items even if they were well pled. There is also the issue before the court insofar as Plaintiff’s actual ability to sue ZOMBIE, seeing as how he is an undead creature, and as such is not under the law of any country on earth due to his state of being dead. Plaintiff has neglected to address this elephant in the room, and instead has allowed the elephant to sit upon him, at least in respect as to ZOMBIE. Without removing this legal mountain, Plaintiff is not able to hold ZOMBIE accountable, even if he were able to prove that ZOMBIE did assault him with the tortious behavior alleged in his complaint.
WHEREFORE ZOMBIE asks the Court to DISMISS the instant lawsuit for failure to state a claim upon which relief can be granted pursuant to Maryland Rule 2-322(b)(2) and for such other relief as it may deem just and proper. Preferably to be paid for in fresh, succulent brains. ZOMBIE hopes and prays for such relief.
That was just my first stab at things. But I doubt that the corpulent resident of the tincasa will ever get around to serving me. So we get to read for FUN!