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 email@example.com 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. 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. 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 . 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 18.104.22.168 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