Comments on the 2006-09-21 Order in Merkey v. Peren et al.

Below are some comments (by me, Al Petrofsky) about the ruling by United States District Judge Dale A. Kimball on September 21, 2006 in Merkey v. Perens et al. (2:05-cv-521, District of Utah).

Here are links to some of the background documents:

For copies of everything in the case file (with one court-ordered exception), see the docket listing on the scofacts Merkey page.

Opening problems

I'm going to start by pointing out two errors on the first page, which did not cause any harm to me, but which I think may illuminate part of the overall problem. I'll then address the meat of the order.

First, in the opening paragraph, Judge Kimball writes:

On June 30, 2006, Magistrate Judge Warner issued a Report and Recommendation, recommending that: (1) Plaintiff's motions for default judgment be granted; (2) Petrofsky be ordered to remove the Novell Settlement Agreement from and any other websites owned by Petrofsky; and (3) Plaintiff's motion to amend complaint for damages be granted.

Magistrate Judge Warner actually only made two recommendations, and made no recommendation about Merkey's motion to amend. What he said about the motion to amend was that he was granting it, not recommending that it be granted: "The court further grants Plaintiff's Motion to Amend Complaint for Damages" (p. 3). That's why his ruling was not just titled "REPORT AND RECOMMENDATION" but was instead titled "REPORT AND RECOMMENDATION AND ORDER GRANTING MOTION TO AMEND COMPLAINT".

Because that part of Judge Warner's ruling was an order and not a recommendation, it should have been reviewed for clear error (per F.R.Civ.P. 72(a) and 28 USC 636(b)(1)(A)) and reversed. Of course, that outcome is the same as what ultimately resulted from what Kimball did do: he reviewed the nonexistent recommendation de novo, rejected it, and ordered that "Merkey's request to amend his complaint to seek damages with respect to Petrofsky's prior conduct is denied".

Second, in the next paragraph we have:

The Report and Recommendation notified the parties that any objection to the Report and Recommendation was required to be filed within ten days of receiving it.

This assertion is false, because Magistrate Judge Warner had forgotten to include the corresponding language in his Report and Recommendations. For another example of Judge Warner forgetting to mention the objections procedure, see his recent R&R on September 1 in Stevens v. McClellan. On September 5, he amended that R&R to include the usual notification to the parties:

Copies of this Report and Recommendation are being sent to all parties, who are hereby notified of their right to object. The parties must file any objection to this Report and Recommendation within ten days after receiving it. Failure to object may constitute waiver of objections upon subsequent review.

(Amended Report and Recommendation, Stevens v. McClellan, 2:06-cv-215 (Dist. of Utah, September 5, 2006))

Contrary to Judge Kimball's statement, no such notice was ever included in the R&R in this case. (Like the first error I discussed above, this did not affect the outcome: I was aware of the procedure anyway, and I filed within the deadline, which Judge Kimball acknowledged in the next sentence.)

So, before we get through the first page, there are already two errors indicating that Judge Kimball had not paid very close attention when reading the 3-page R&R and Order. As a result, he hadn't even correctly identified what was being reviewed. Presumably, no closer attention was paid to the briefs. (In a refreshing bit of candor, the order does simply claim that "the court has reviewed the file", and declines to make the usual assurances that the briefs were "carefully" considered.)

The jurisdiction question

And now moving on to the heart of the matter, on page 3 we get:

Petrofsky's objection provides no explanation for his failure to respond to the second amended complaint or motion for default. Instead, he attacks the court's jurisdiction to reopen a case. The court does not find Petrofsky's objection with respect to the court's jurisdiction persuasive. The court has jurisdiction to reopen a case, and once a case is reopened a party must participate or risk a finding of default.

I did not dispute the general proposition that "The court has jurisdiction to reopen a case". What I argued was that once Merkey filed his notice of dismissal, the court lost jurisdiction over the claims in the complaint, and could not issue a default judgment or any other order pertaining to those claims (see Objections at 15-16). Unlike Judge Kimball, I cited a Tenth Circuit opinion (which is binding on U.S. District Judges in Utah) that specifically holds what I was asserting:

The effect of the filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) is to leave the parties as though no action had been brought. Once the notice of dismissal has been filed, the district court loses jurisdiction over the dismissed claims and may not address the merits of such claims or issue further orders pertaining to them.

(Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003) (internal brackets omitted, emphasis added), quoting Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir. 2001))

Merkey made no substantive response to this argument, and it is quite frustrating that Judge Kimball didn't either, and instead simply made a bald assertion that "The court has jurisdiction". I wish he had cited an overriding authority (from the Supreme Court or a more recent opinion from the Tenth Circuit), or else written one sentence in the form "Petrofsky cites Janssen, but that case is inapplicable because _______". I don't mind losing an argument if I at least get to learn some new bit of law, but all I get from this order is an unsupported, unpublished assertion by a District Judge, which appears to be contradicted by what his superiors have already written on the issue.

Judge Kimball then opines, again without citing any authority:

the court has jurisdiction to determine whether a party to the action can disseminate confidential information that has been filed in connection with the case

This assertion seems unreasonably broad, if you're going to apply it even when (1) the party was never properly served with a complaint over which the court had any jurisdiction at the time of service (and thus the court never obtained jurisdiction over the party at all); and furthermore, (2) the party was not even named as a party on any complaint until a month after the clerk of court had made the information available to the public and had provided it to the person in question, who was very much a non-party at that time. Elaborating on point (2): it may be quite reasonable for a court to impose restrictions on a party's dissemination of any information that the party came to obtain as a result of the fact that he was a party. That, however, is not what happened here.

Puzzling use of discretion

Even if the court did have jurisdiction to reopen the case in October 2005 and to issue the cease-dissemination order in September 2006, it seems Kimball at least agrees that he was not obligated to do either of those things, and it would have been within his discretion to decline to do them. I find it ridiculous that a court would lift a finger to help Merkey. As I put it at the end of my reply brief:

Even if this Court somehow had the jurisdiction and the discretion to enter a new order that somebody do something regarding the Settlement Agreement, it would nevertheless be clear that (1) Merkey is the only one petitioning this Court for any relief, and (2) Merkey is a prolific liar and/or a raving lunatic who has already caused the Court to hold one pointless hearing, and whose false representations to the Court continue unabated. As I acknowledged in my Objections (at 28-29), it is an unenviable but necessary duty of the Court to take any crank seriously, initially, if he manages to come up with the $350 filing fee. ... However, once a complaint has been dismissed and this unpleasant duty has ended, it defies common sense for a court to continue to give Merkey the time of day, much less a hearing (or a reopening of his case), when he has shown himself to be devoid of good faith.

(Reply brief, at 8-9)

Judge Kimball did not shed much light on why he chose to make work for himself by reopening Merkey's case for free last October. He did, at least, specify on page 4 that if Merkey wants to bother the court about this again, he will have to "file a new, separate action", i.e., pay the court another $350. (He only had to pay $250 to open this case in June 2005, but the filing fee has since increased.)


Oh well. The ruling is disappointing, and I think it is incorrect, but the document at issue was not the most important one for me to be able to distribute, in order for me to be able to credibly warn people about Merkey's lunacy. Therefore, I'm not taking the risk of disregarding the order, nor am I going to be forking out $450 to file an appeal.

The court's handling of the case does make me want to direct toward the Court a certain word that's more popular than Mom and Apple Pie (see Eric Vanatta, The F-Motion, 21 Const. Comment. 285, 288 (2004)), but I will stick with "I respectfully dissent".

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