Robert Novak v. APD List Members
(PetsWarehouse Lawsuit)
Letter from Robert Novak to Judge Wall dated 05-16-02
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Robert Novak May 16, 2002 Honorable Magistrate Judge William D. Wall, U.S.M.J. Re: Novak v. Active Window Pub, Et Al No. Cv 01-3566 (DRH-WDW) Your Honor: I am the plaintiff in the above captioned matter, and am requesting leave to file a second amended complaint under rules 15a, c, and d. Plaintiff filed this action on May 30, 2001. Two of the defendants, Active Window Publications, Inc., and Mark Rosenstein,have filed an answer. The majority of the information leading to this request is information only recently made known, and was not confirmed at the time of the filing of the complaint. Further, defendants counsel, Cynthia Kouril, agreed that for purposes of clarity and amended complaint may be beneficial. Pleadings must be amended to reflect certain supplemental pleadings. This request is made in good faith and not for any dilatory purpose, and is made pursuant to this court's status conference of April 19, 2002. Motions to amend pleadings under the Federal Rules of Civil Procedure, including amendments to add parties, should be freely given, and should be denied only where the amendment would be futile, where it is sought in bad faith, or where it would prejudice opposing parties. Accordingly, plaintiffs respectfully request the Court to grant the request herein, and that the Court allow the plaintiff to file a second amended complaint. A first amended complaint, which was filed, has been withdrawn. Relief sought regarding service of Thomas Barr. Mr. Barr is a necessary party defendant he has been evading service of this action. However, in several statements he has made in Internet chat rooms, he openly admits service. In fact, he stated "I got my copy recently." This individual has made further statements in chat rooms "mocking" this Honorable Court, referring to this Court as "Turkey Court" ... "Cartoon Court." My complain t alleges this individual to have committed computer fraud, a criminal act! On July 25, 2001, Mr. Barr signed for certified mail containing a waiver of service, to which he failed to respond. (See attached exhibit). When we attempted personal service, I learned that he no longer resided at that address. I requested an extension of time to serve this individual in September 2001 and requested an information subpoena for his forwarding address from the Postmaster in San Rafael, CA. In an appearance before your Honor on December 11th, I requested that the application for the subpoena be signed. I respectfully request your Honor to take judicial notice of your comments at that hearing, wherein, to the best of my recollection, you stated that you were going to hold off on issuing subpoenas until you see what's left of this case and until the appearing council's motions are decided, there is no sense in spending money serving these parties, your request for the subpoenas would be denied at this time. Since that time, several of the named parties have settled their part in this case, and in so doing, mooted those applications. I asked the Court for some guidance in this matter in the alternative of an issuance of a subpoena. Would the court order substituted service via certified mail assuming the U.S. Post Office is still forwarding mail at this time, or subpoena his Internet service provider (ISP) for his physical address. In the alternative, service of process by e-mail, see (Rio Properties, Inc v Rio International the 9th Circuit Court of Appeals 01-15466,01-15784) found that "e-mail service was an appropriate alternative as a method of communication", "the Constitution does not require any particular means of process, only that the mothod selected be reasonably calculated to provide notice and an opportunity to respond.", "Courts...cannot be bloind to changes and advances in technology", "playing hide-and-seek with the federal court, e-mail maybe the only means of effecting service". Since this case revolves around the Internet and e-mail communication the Court should consider this method of service for Mr. Barr. Considering my allegations relating to this defendant, I feel he is a necessary party to this action and must be brought to this Court's jurisdiction. Very truly yours, Service by UPS |
For more information about any aspect of this lawsuit, please contact:
John R. Benn, 104 West Third Street, Sheffield, AL 35660
Phone: 256-386-7685 or 256-366-4177 | FAX: 256-386-7615
Email: jbenn@jblaw.org