p2pnet news | Freedom:- The RIAA has sued a dead grandmother, a 12-year-old child, a disabled mother, a woman seriously ill from multiple sclerosis, and an elderly home health aide who doesn’t know one end of a computer form another, among many others.

So why not a homeless man?

Here’s Ray Beckerman in Recording Industry vs The People >>>

In Warner v. Berry, where the RIAA was suing a man who lives in a homeless shelter, the Magistrate Judge — Hon. Kevin Nathaniel Fox — recommended that the plaintiffs’ application for a default judgment be denied, and that the plaintiffs be ordered to show cause why they should not be sanctioned under Rule 11. The Judge agreed that the default judgment should be denied, but chose not to sanction plaintiffs’ attorneys.

The facts were as follows:

On April 9, 2007, the RIAA’s process server had posted a copy of the summons and complaint on the door of the defendant’s apartment, which the RIAA knew was not a good address.

On April 17, 2007, the plaintiffs requested a 60-day adjournment of a scheduled conference because their “attempts at service at Defendant’s last-known address were unsuccessful.

“Plaintiffs stated they were ‘now conducting a thorough address investigation to locate a current address at which to serve Defendant before the June 13, 2007 service deadline’.”

On April 25, 2007, Plaintiffs’ process server executed an affidavit of service, declaring that on April 9, 2007, at 3:50 p.m., she posted the summons by affixing one copy “in a conspicuous place on the property known as: 1713 Adee Ave Apt. 1 Bronx, N.Y. 10469″, which was the address they knew was a bad address.

Meanwhile, Magistrate Judge Fox observed that at the time of Plaintiffs’ April 17, 2007, letter to this Court, which sought an adjournment of the pretrial conference so that Plaintiffs could locate Defendant’s current address, Plaintiffs “had already resorted to the ‘affix and mail’ method of service because they affixed the summons to the defendant’s last known residence on April 9, 2007.”

The Magistrate Judge found that “[b]y affixing the summons on April 9, 2007, the plaintiffs demonstrated they never intended to conduct ‘a thorough address investigation …’ because they employed the ‘affix and mail’ method of service without exercising due diligence to effect personal service pursuant to CPLR s 308(1) and (2).” Magistrate Judge Fox concluded that Plaintiffs’ representation to this Court to the effect that they intended to conduct an investigation to locate Defendant’s current address implicated Fed.R.Civ.P. 11(b) because it was made for the improper purpose of unnecessary delay.

District Judge Harold Baer, Jr., agreed with the Magistrate in most respects, but declined to issue Rule 11 sanctions, because he felt the lawyers’ misrepresentation was the result of sloppiness rather than an intention to mislead, “giving them as officers of the Court the benefit of the doubt”:

While Plaintiffs’ lawyers should be faulted for failing to keep closer tabs on

their process server and for failing to better supervise their paralegal, their actions do not rise to the level of a Rule 11(b) violation.

Plaintiffs’ lawyers might have been sloppy in their attempts to serve Defendant, but giving them as officers of the Court the benefit of the doubt, all their representations to this Court were, to the best of their knowledge, information and belief, not for the improper purpose of unnecessary delay.

Stay tuned.

Slashdot it!

Recording Industry vs The People - RIAA sues homeless man; makes ’sewer service’; Magistrate recommends Rule 11 sanctions; Judge says no but denies default judgment, April 17, 2008

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This entry was posted on Thursday, April 17th, 2008 at 5:12 pm and is filed under RIAA News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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