Below is the text of a memo of which the official court pdf version, which includes the exhibits, can be found at http://scofacts.org/Merkey-Perens-10.pdf.
For more information see http://scofacts.org/merkey.



FILED
U.S. DISTRICT COURT
2005 AUG -9 A11:59
DISTRICT OF UTAH
BY:____________
   DEPUTY CLERK


Alan P. Petrofsky
Pro Se
3618 Alameda Apt 5
Menlo Park CA 94025
(650)520-0626
al@petrofsky.org


		 IN THE UNITED STATES DISTRICT COURT

		  DISTRICT OF UTAH, CENTRAL DIVISION



JEFFREY VERNON MERKEY,                  2:05CV0521DAK

	Plaintiff,

vs.					UNSERVED DEFENDANT ALAN P.
					PETROFSKY'S MEMORANDUM IN
YAHOO SCOX members atul666		OPPOSITION TO PLAINTIFF JEFFREY
  and saltydogmn,			VERNON MERKEY'S EX-PARTE MOTION
PAMELA JONES a.k.a. GROKLAW.COM		TO CONDUCT EXPEDITED DISCOVERY
  a.k.a. OSRM and GROKLAW.NET,
GRENDEL a.k.a. PAGANSAVAGE.COM,		  
MATT MERKEY a.k.a MERKEY.NET,		
BRANDON SUIT a.k.a. MERKEY.NET,		Magistrate Judge Samuel Alba
JOHN SAGE a.k.a. FINCHHAVEN.COM,
MRBUTTLE a.k.a. IP-WARS.NET,
JEFF CAUSEY a.k.a. IP-WARS.NET,
AL PETROFSKY a.k.a. SCOFACTS.ORG,
and DOES 1 through 200,

	Defendants.
                                       

________________________________________________________________________


Defendant Alan P. Petrofsky, who has not been served any complaint,

summons, motion, or memorandum in this case, nor has he waived any

service, nevertheless submits this memorandum in opposition to

Plaintiff Jeffrey Vernon Merkey's Ex-parte Motion to Conduct Expedited

Discovery.



				  1


PRELIMINARY STATEMENT



Let us begin with the obvious overarching issue: it is surely evident

to the Court, and to anyone else who reads the papers filed by

plaintiff Jeffrey Vernon Merkey ("Merkey"), that the overall

impression he makes -- whether it is on account of his true nature or

of an affectation -- is that of a raving lunatic.



This disconnect between Merkey and reality has been seen in court

before.  In the Novell suit against Merkey that figures prominently in

the amended complaint (pages 26-32), the court's January 30, 1998

ruling included the following findings of fact (Novell v. Timpanogas

Research Group, 46 USPQ.2d at 1204 (Utah 1998), 97-0400339 in Utah

County, attached as Exhibit 1):

   124.  In fact, however, Merkey is not just prone to exaggeration,
   he also is and can be deceptive, not only to his adversaries, but
   also to his own partners, his business associates and to the court.
   He deliberately describes his own, separate reality.

   ...

   129.  In a letter from Merkey to Albert on September 12, 1997,
   Merkey asserted that the "Utah Judicial Commission contacted me
   Thursday, and relayed that they had reviewed Judge Schofield in
   Court over video camera, and have initiated an investigation
   relative to the Court session of September 8, 1997." (Ex. 107).

   130.  While it may be possible that the Utah Judicial Commission
   (Conduct Commission?) contacted Merkey, that commission has not
   obtained a copy of any video of the court session of September 8,
   1997.  That hearing was court-reported and the only video made was
   made in accord with Rule 4-201(2)(C), Utah Code of Judicial
   Administration, for the purpose of the judge's private notes.  No
   copy of that sole copy has been viewed by anyone other than the
   court.  In short, this statement is another example of Merkey's
   penchant for self-serving, separate reality, dishonesty.



				  2


   131.  While it is human nature for each of us to put our own spin
   on events which we observe -- indeed the heart of most auto
   accident cases is the different perceptions of eye-witnesses --
   Merkey nonetheless regularly exaggerates or lies in his comments to
   others about events happening around him.  It is as though he is
   creating his own separate reality. ...



In the instant action, we have such gems as the assertion that I have

"conspired with individuals in communist countries", specifically,

"the counrty of Checkoslovakia" [sic] (plaintiff's supporting brief,

Exhibit 3).  Communist Czechoslovakia arises in connection with my

redistribution, allegedly in violation of this court's June 22 order,

of the old settlement agreement that was attached as Exhibit 2 to the

complaint.  (For more context, including an email from one of the

Court's law clerks and my June 23 email announcing that I had ceased

such distribution, see the emails attached as Exhibit 2 to this

brief.)  The amended complaint attempts to cast the incident as

treason:

   30.  Al Petrofsky and SCOFACTS.ORG is an Internet news website that
   that distributes and posts both public and sealed court documents
   and is used to transport sensitive court documents in pending
   litigations outside of the United States in violation of Federal
   Court Orders and into the hands of foreign nationals and the
   enemies of the United States. ...

No reason is given for why this 1998 settlement agreement would be of

any interest to our alleged Communist Czechoslovakian Enemies, nor is

it explained how they have managed to survive more than a decade since

the fall of European Communism and the breakup of Czechoslovakia.[1]


--------

1.  For the record: I am not now, nor have I ever been, a member of
any Communist Party, foreign or domestic.  May God bless America.


				  3


As explained later in this brief, there is no apparent reason for

Merkey's failure to serve me or most of the other defendants he has

named.  He has failed to exhibit any genuine effort either to effect

service or even to make a proper request for waiver of service.  It is

not clear whether he ever intends to do so, or if the whole purpose of

this case is to appropriate the court and its files as theater and

gallery for the exhibition of his unusual art form.



Nevertheless, I have already incurred costs in responding to this

ridiculous litigation.  These costs will increase substantially if a

summons ever is served on me and I then go to the trouble of engaging

Utah counsel, filing a response to this wholly meritless complaint,

seeking reimbursement of all my costs and fees, and generally being

forced to stop viewing the plaintiff as an amusing crackpot and start

viewing him as a malicious and dangerous serial perjurer.[2]









--------

2.  I should perhaps already view Merkey's ravings as a danger to
people's freedom.  It is with some alarm that I notice that the
minutes of a hearing before this Magistrate Court on June 28 in an
unrelated action, USA v. Mooney et al, 2:05-cr-410-TS-SA, indicate
that Merkey was called to testify in support of a bid to keep a man
imprisoned.  I do not know what importance, if any, Merkey's testimony
may have had in the Magistrate Court's decision to keep James Mooney
in custody for seven more days, but it is disconcerting that a
prosecutor could see fit to present to a court any testimony by
Merkey.  There is clearly no reliable correlation between the words he
speaks and the reality in which the rest of us live.


				  4


FACTS AND ARGUMENT


The amended complaint names as a defendant "AL PETROFSKY a.k.a.

SCOFACTS.ORG".  "Al Petrofsky" is an abbreviation of my name that I

often use.  Although I am not known as "Scofacts.org", it is the

internet domain name of a website that I control.



Merkey asserts that my address and location are "unknown" (amended

complaint, paragraph 30), and that "the named defendants are evading

service" (supporting brief, page 8).



However, as is required for any subdomain of the Com, Net, or Org

domains, Scofacts.org has a listed mailing address in the publicly

accessible database of domain registration records, which is known as

the "WhoIs" database [3].  In other words, as people have long said

about telephone directories: "I'm in the book".



Merkey claims to be "one of Utah's preeminent computer scientists"

(amended complaint, paragraph 9), and as such he should not have

difficulty looking up registered website owners in the public

directories of such records.  However, I see no evidence that he has



--------

3.  See section 3.3.1.6 of the Internet Corporation for Assigned Names
and Numbers (ICANN) Registrar Accreditation Agreement, May 17, 2001.
That section and related provisions are included and explained in
ICANN's May 10, 2002 Registrar Advisory Concerning Whois Data
Accuracy, which is attached as Exhibit 3.  An easy way to access the
registration records is through the completewhois.com website.  See
Exhibit 4.

				  5


attempted, in the 46 days since the action commenced, to send any

correspondence whatsoever to the listed mailing addresses of any of

the internet sites he has named as defendants.  (Of all the sites he

names, the only one that does not have a U.S. mailing address listed

in the current database is Pagansavage.com, a site that no longer

exists.)



CONCLUSION



Merkey's motion seeks "Leave to conduct Expedited Discovery for the

purpose of identifying and locating the named parties for service of

this action".  The exact order desired is not clear, but to the extent

that the motion seeks information about my location, it should

certainly be denied, because my location is publicly known and is also

disclosed on the first page of this brief.


To the extent that the motion seeks information from non-parties about

defendants other than me, I do not have an interest in the matter.

However, Merkey has not submitted any evidence that he has exhausted

simple methods of locating defendants, and I therefore suggest that no

extraordinary discovery order is required.


I have no desire to travel to Utah to argue this motion.  I have no

objection if the Court wishes to allow Merkey and any other parties an

opportunity to present oral argument on this motion without me






				  6


present.  If the Court and other parties should need to confer about a

rescheduling of a hearing on this motion, I need not be consulted.



Respectfully submitted this Sixth day of August, 2005,




________________
Alan P Petrofsky
3618 Alameda Apt 5
Menlo Park CA 94025






































				  7



CERTIFICATE OF SERVICE

I hereby certify that on the Sixth day of August, 2005, I personally
mailed a correct and true copy of the foregoing Memorandum in
Opposition to Plaintiff Jeffrey Vernon Merkey's Ex-parte Motion to
Conduct Expedited Discovery, to the following:

   Jeffrey Vernon Merkey 
   1058 E 50 S
   Lindon UT 84042



____________________
Alan P. Petrofsky