Scofacts > Other Cases > Merkey
Contents of this page: Docket, Other Communications, Other Cases.
Jeff Merkey launched the vexatious but humorously deranged www.merkeylaw.com website on June 15, 2005, announcing that:
This site tracks the Federal Lawsuits filed in US District Court, District of Utah against Pamela Jones, Groklaw, Finchhaven, Pagan Savage, Merket.net, Slashdot, Bruce Perens, IP-Wars.net and John Does 1 - 200. This lawsuit is scheduled to be filed June 22, 2005. Pamela claims she is not an attorney, but she probably needs to get one. The lawsuit seeks 100 million dollars in damages for civil rights violations, defamation, and two dozen other torts from each defendent. PJ's offspring are also named in the complaint and her co-conspirators, as well as other sites who have perpetrated lies that Jeff Merkey works for SCO, etc. ad naseum.
Yes, 100 million dollars, "from each defendent", times 200+ defendants, equals ... over TWENTY BILLION DOLLARS! Four times the risibility of SCO's demands!
The complaint he ultimately filed, on June 21, left out the SCO-topping damages figure, but it contained enough references to SCO and to prominent anti-SCO site groklaw.net that it was of interest to many SCO followers. For that reason, I (Al Petrofsky) placed a copy of it on this site. That, in turn, led to Merkey accusing me of aiding Communist Czechoslovakian enemies of the United States.
This litigation probably won't reveal much about SCO. Why is it here? Well ..., on June 22, because people were curious, I made the complaint and its exhibits available at a couple of scofacts URLs (for which I did not bother to add links from any other scofacts page), and I posted the URLs to the discussions of the case that were occurring on Yahoo.com and LWN.net. On June 23, I removed Exhibit 2, as a courtesy to Novell, Inc., Darren Major, and Larry Angus (see the email). On July 12, Merkey announced on www.merkeylaw.com that I had "violated a Federal Court Order", that "This conduct amounts and borders on espionage, treason, and domestic terrorism", and that I would be added as a defendant in his suit. I then, on July 14, added the email to this site, to let people know what had actually transpired.
Merkey then added me as a defendant on July 20, and I filed a memorandum in the case on August 9. Because there's no "Scofactsfacts" to cover the case, I added this page on August 10, for the benefit of anyone who is interested in the case, or who is in danger of falling for Merkey's ability to appear sane for limited periods of time.
Merkey dropped his case on September 27. Although 98 days had passed since he had filed the case, no one had yet responded to his complaint, because he had never bothered to serve process upon any of the defendants. He had started to make a Rule 4(d)(2) request that would have obligated me to waive service of process, but he was apparently unwilling or unable to make the seventy-four cents cash outlay that would have been required to complete his request (see the Other Communications section). I had only been named as a defendant for the last 69 days of the case, but there was one defendant who was continuously named throughout all the amendments and partial dismissals: Pamela Jones of groklaw.net. Merkey's own filings state that, since before the case began, he had known of three addresses (in Hartsdale NY, White Plains NY, and Norwalk CT) at which he had some reason to believe Jones could be reached (see exhibits 2 and 3 to his affidavit). However, he never bothered to take ten seconds to look up groklaw.net's official correspondence address (in Scottsdale AZ), nor did he ever attempt to send a summons or waiver request to any of the three addresses he already had. Instead, he moved for leave to send out subpoenas to various third parties commanding them to provide Merkey with even more Jones addresses. (The court had yet to rule on this motion when Merkey dropped the case.)
As mentioned above, on June 23 I removed from this site an old settlement agreement, which Merkey had filed a couple of days earlier as an exhibit to his complaint. On October 20, after determining that the removal had been pointless (see my correspondence with Novell), I restored the item. Below you can now find a complete set of the records in this case.
In 1998, the Fourth Judicial District Court of Utah found that Merkey "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" (see 1998-01-30 ruling, p. 20, from the TRG case). From the nonsense Merkey has written this year in his court papers, in his email, and on his merkeylaw.com website, it is apparent that in the last seven years there has been no improvement in the gulf between his words and reality.
Reading Merkey's ridiculous claims in this case, one might think that there was no danger of anyone ever mistaking Merkey for a rational human being, and certainly no danger of anyone thinking that statements by Merkey could ever be relied upon for any purpose other than entertainment. Unfortunately, however, people have really made such misjudgments, and have done so as recently as June 28, 2005. At a hearing on that date in U.S. v. Mooney et al., prosecutor Veda Travis actually saw fit to call Merkey as a witness for the United States. In an ultimately unsuccessful attempt to have James Mooney imprisoned for several months pending trial, Travis presented Merkey's testimony to the court as if it were evidence of something in the real world.
In the future, I hope that the information on this page will help people avoid making similar serious misjudgments about Merkey.
A few weeks after he dismissed his own complaint, Merkey moved to reopen the case "for the purpose of enforcing the Courts [sic] orders sealing the Novell/TRG settlement agreement" (Dkt No. 32). Merkey had filed the old Novell Settlement Agreement as an exhibit to his original complaint. The clerk had then provided copies of it to me and other non-parties, and the Court had then ordered the clerk to seal the item and remove it from the court's public docket (see Dkt. No. 2). (This all happened a month before I was named as a defendant in a subsequent amended complaint.)
Judge Kimball declined to reopen the case for "enforcement" of the sealing order, which was directed only at the clerk, but Kimball did reopen the case to determine whether that order "should also apply" to anybody else (Dkt. No. 34, October 27, 2005). Eleven months later, he determined that it should, and he wrote on September 21, 2006 that "[t]he court, therefore, orders Petrofsky to cease dissemination and/or publication of the confidential settlement agreement on scofacts.org and any other website he owns or with which he affiliates. ... The purpose for reopening this case has been addressed and there is no further need for the case to remain open. Therefore, the court closes the case." (Dkt. No. 46). I then removed the Novell Settlement Agreement from the otherwise-complete collection of case filings below.
I filed a total of three items in this case: my August 2005 brief during the first go-round, and my July 2006 brief and August 2006 brief during the reopened proceeding. For my additional comments after reading Judge Kimball's final order, see this page.
Although having a copy of the Novell Settlement Agreement is useful for checking Merkey's mischaracterizations of it, there are other documents that are much more useful if you're simply looking for confirmation that Merkey is indeed a total nutjob. For one, there's his delusional complaint in this case, in which he describes a broad and murderous conspiracy against him involving "Linux Members", Al-Qaeda beheadings, and weapons of mass destruction. There's also Judge Schofield's ruling in 1998, which included these findings of fact:
123. Major testified that even though he has such a close business relationship with Merkey, he has to filter what Merkey says to find the truth, he is unable to control Merkey, Merkey is able to create his own reality which may have no basis in fact, and Merkey is prone to exaggeration.
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.
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.
(Novell v. Timpanogos Research Group, 46 USPQ.2d 1197, 1204 (Utah 1998))
At various times, Merkey has attempted to intimidate people into not publishing that ruling, by falsely claiming that it was sealed by the court. See, for example, his emails to Pamela Jones dated October 28, 2004 (12:49 pm) and January 25, 2005. He filed those emails in this case himself: they're in Exhibit 1 to his August 23, 2005 affidavit, in which he swears that he in fact wrote the emails (see paragraph 4 on page 2). (The January email also includes fabrications about Novell: cf. Response #3 in the September 23, 2005 letter from one of Novell's lawyers in response to my September 16 letter.)
In truth (as Merkey well knows, during his lucid moments), Judge Schofield's ruling was never sealed, and it is therefore publicly available from the court in Utah County (see these images of a paper copy that the court provided in August 2005). Furthermore, the ruling was published in the United States Patents Quarterly, and thus it is also available from The Bureau of National Affairs, Inc. (the publisher of U.S.P.Q.), as well as from Westlaw and from LexisNexis, and it can be found in hardcopy on the shelves of numerous public law libraries throughout the country.
As I discussed in the previous update above, Merkey – despite his frequent insane outbursts – is actually capable of temporarily appearing normal, and this can lead to real harm when people unfamiliar with him fail to realize that they shouldn't believe a word he says. If you think I'm just picking on a harmless nut, please consider that his utterly unreliable testimony was actually used as part of the evidentiary record that a court was relying on last year when it imprisoned James Mooney for two weeks. (All of the charges against Mooney were eventually dismissed; see my notes below on U.S. v. Mooney et al..)
I continue to hope that by leaving the information on this page available here, where it might be found by someone who is considering trusting Merkey in any way (including, God forbid, by any other prosecutors who might be considering using Merkey as a witness for the state), that I might help someone to avoid making a serious mistake.
JEFFREY VERNON MERKEY,
BRUCE PERENS a.k.a OSRM (terminated 2005-07-20),
PAMELA JONES a.k.a. GROKLAW.COM,
GRENDEL a.k.a. PAGANSAVAGE.COM (terminated 2005-08-16),
MATT MERKEY a.k.a MERKEY.NET (terminated 2005-08-16),
BRANDON SUIT a.k.a. MERKEY.NET (terminated 2005-08-16),
JOHN SAGE a.k.a. FINCHHAVEN.COM (terminated 2005-08-16),
MRBUTTLE a.k.a. IP-WARS.NET,
SLASHDOT.ORG (terminated 2005-07-20),
DOES 1 through 200,
YAHOO SCOX members atul666 and saltydogmn (apparently added 2005-07-20 and terminated 2005-08-23, but never recognized on the official docket)
JEFF CAUSEY a.k.a. IP-WARS.NET (added 2005-07-20),
and AL PETROFSKY a.k.a. SCOFACTS.ORG (added 2005-07-20),
Electronic Frontier Foundation,
American Civil Liberties Union of Utah Foundation,
Case 2:05-CV-0521-DAK-SA, United States District Court, District of Utah, Judge Dale A. Kimball, Magistrate Judge Paul M. Warner.
(Although Perens was dropped from the list of defendants on 2005-07-20, the official docket kept the caption as "Merkey v. Perens et al")
Docket Synopsis (links jump to entries in the full docket listing below):
Below is an unofficial docket listing with links to local copies of documents. (See also the official docket listing.) The listed date is the filing date (rather than the entry date). Each docket number is a link to a copy of the full "Notice of Electronic Filing" (NEF) for that docket entry. Except where noted, all pdf files in the listing below are byte-for-byte copies of official digital records obtained from the court (for a fee) through ecf.utd.uscourts.gov.
(Note: during the litigation, Wolf Mountain Group, Inc. changed its name to Timpanogas Research Group, Inc.. "Timpanogas" is spelled with an "as" on the corporate registration record at utah.gov (corp. 1349632-0142), but it is spelled "Timpanogos" on most of the court documents. Also note that this "Wolf Mountain Group, Inc." / "Timpanogas Research Group, Inc." is distinct from "Wolf Mountain Group, LLC" (corp. 6031610-0160) which wasn't incorporated until 2005-10-19.)
The docket listing [pdf] for this trade secrets case goes on for over thirty pages. The case was ultimately settled before going to trial. The most significant ruling was Judge Schofield's lengthy 1998-01-30 ruling [html] [pdf] granting Novell's motion for a preliminary injunction. The appeals court declined to allow an interlocutory appeal of the injunction. The ruling includes several findings about Merkey's estrangement from reality. (It also contains interesting analysis of trade secrets law, and it is the first ruling by any state or federal court in the tenth circuit to adopt the doctrine of "inevitable disclosure", which is why the ruling was published, as 46 USPQ.2d 1197.) Merkey's initial response, made on the same day, was an amusing letter about Schofield's "Mormon masters" [pdf]. Merkey later filed an Affidavit of Prejudice, which was the subject of Judge Hansen's 1999-01-07 ruling [pdf], which finds that Merkey's affidavit "fails to support any allegation of bias or prejudice with legal sufficiency".
One week after he filed his apparently hallucinatory complaint in Merkey v. Perens, Merkey (who is an avowed legal user of peyote) testified for the United States in this drug felonies case. The case was about Mooney's peyote-related activities (much of the facts of which were uncontested) and whether or not such activities are indeed illegal for non-federally-recognized Indians.
The prosecution called Merkey to testify against Mooney at his initial detention hearing on 2005-06-28 (see the minutes and the transcript). Merkey testified that Mooney's attorney was threatening him with continuing litigation in retaliation for merely "provid[ing] any information" to the authorities prosecuting Mooney (transcript at 40:8-24). He also testified that he had third-hand knowledge that Mooney recently made a fraudulent attempt to purchase peyote (Id. at 42:22-44:7). At the conclusion of the hearing, Magistrate Judge Alba ordered that Mooney be detained pending trial, but he also asked the defense to obtain more information for him about Mooney's history in state court, and he scheduled a hearing for one week later to again consider releasing Mooney. At that follow-up 2005-07-05 hearing, Alba ordered that Mooney be released. The prosecution then appealed to District Judge Stewart. Two days later, Stewart affirmed Alba's order, and Mooney was released.
All of the above was recapped in Judge Stewart's 5-page 2005-08-02 ruling, which discusses Mooney's harmlessness.
On 2006-02-23, the indictment was dismissed with respect to Mooney and his wife pursuant to a settlement agreement that they would desist from peyote use and distribution unless the drug laws change to explicitly allow it or until "A federal court has held in a final judgment that federal drug laws do not preclude the possession, use, or distribution of peyote in the context of Native American Church ceremonies without regard to Native American ancestry or membership in a federally recognized tribe".
Magistrate Judge Warner, who recommended that a $22 million default judgment be entered against me in Merkey v. Perens, was also involved in U.S. v. Mooney. At all of the court hearings regarding the Mooneys, the United States was represented by Assistant U.S. Attorney Veda M. Travis. The settlement agreement was signed by her boss, Richard Lambert, the Criminal Chief for the District of Utah's U.S. Attorney's office. Officially, as reflected on the indictment and all of the other papers filed by Travis, the United States was represented by her and by Paul M. Warner. Warner was the district's presidentially-appointed, senate-confirmed U.S. Attorney, who had the final say on everything Travis and Lambert did, until January 27, 2006, when he resigned his office. On February 19, he was appointed a U.S. Magistrate Judge (by the local District Judges, for an eight-year term, per 28 USC 631), and on February 23, the Merkey v. Perens case was referred to him.
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