LHC Safety and the Law

Discussion in 'Physics & Math' started by rpenner, Sep 23, 2008.

  1. rpenner Fully Wired Valued Senior Member

    It is still early.

    Rule 15 of the Federal Rules of Civil Procedure provides that the plaintiff may amend the complain once as a matter of course not later than 21 days after serving the complaint, and there after as justice requires (subject to approval of court or defendant who can obviously have a difference of opinion as to what justice requires).

    Presumably, this means that as of Sept. 13 the plaintiff still had not served any of the defendants -- possibly because no address was yet known. A quick check on Google seems to indicate that only one is readily visible on the Internet (although I think Google lists a work address and not necessarily the residence). The plaintiff's historical appearances in the press are comparatively easier to find.

    Depending on how and when service is planned, it could easily be 2012 before we hear from the defendants. Indeed, it could past Christmas before the defendants find out about the case. (FRCP 4) Ho ho ho.

    The amendment complaint mostly adds paragraphs, although one paragraph in the original was split into two. I have a hard time reconciling what is said in paragraph 36 versus 48 since the same amount loaned seems to be about 0.5 and about 1.0 million dollars. It's not clear if there is meant to be paragraph between paragraphs 40 and 42. The bulk of the damages seem to be the financial awards made against the plaintiff in another court, so I expect those claims to be hotly* contested if and when the defendants show up.

    The plaintiff claims in paragraph 18 that a sentence which includes "possible" (not "likely", "guaranteed", "probable", etc) amounts to an instance of defamation. Is this the same plaintiff who insisted that it was "conceivable" that the LHC might kill us all and then back tracked to sat that he didn't mean it was "probable" or "likely" -- he's just asking questions, y'know.

    The amended complaint also demands that libelous material from the WBGI website be removed. So I went to the website to look for it. No clue what he means, but part of the website is behind password protection.

    Thanks to the Streisand effect, having your lawyer cajole people to giving up their alleged defamatory conduct is often cheaper and more effective than suing. But that involves working at a certain emotional distance. Emotional distance is what allows diplomacy and settlement conferences to proceed, and without them we have only total war.**


    I'm not a lawyer, attorney, or related, but if I were tasked with defending this case, I see no reason not to move to strike the hyperlink to the Wikipedia page on WBGI. http://www.utd.uscourts.gov/documents/2010rules.html#DUCivR7_5 I simply don't understand why it is listed in the complaint since it is inappropriate, has no foundation for admissibility, and if the defendants are who the plaintiff says they are, the link doesn't help the defendants understand the complaint any better. Since anybody can edit Wikipedia, the link effectively allows defendants (who include the WGBI) or other interested persons to insert themselves into the plaintiff's complaint.

    We're not close to seeing argument about the merits of the claims. That's where the meat of the case is. It's where witnesses give up evidence, evidence is shaped into facts, facts and law become arguments for justice. It's where snarky commentators can tear apart a proposed inference or logical deduction and point out that a claim does not rest on the evidence.

    * Indeed.
    ** Total war might well seem to be a reasonable option if you are sure that you have right on your side. But the history of science teaches us "you must not fool yourself -- and you are the easiest person to fool."
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  3. rpenner Fully Wired Valued Senior Member

    Well, one of the defendants has been served and they, or rather their Utah lawyers, seem to agree with this assessment. They argue that the parts that look like a shareholder case should be dismissed because Wagner had all of his shares sold and Nevada corporations should have shareholder cases tried in Nevada state court in any event, and that the allegations called defamation are mostly just replays about what various state judges wrote about Wagner and should be no more defamation than the 1977 People Magazine article.

    An allegation new to me, and published by a state judge as a finding of fact, actually has a bearing on my list of things that I wanted to see from Wagner:

    So I really would like to hear about the finances of the purported anti-LHC non-profit.


    The Utah lawyers presented [doc 7] the finding of facts of three state cases in Federal Court. Since Federal District Cases wind up on the Internet and copyright-free, this would be a good example of the Streisand effect making unflattering statements more visible in the quest to suppress them.

    Wagner starts to respond to this [doc 13] but I think he lost the trail of his res judicata argument is that he seems to be focusing on the nature of post-2008 "publication" while someone less connected to the case might see that the motion to dismiss touts the Findings of Fact as pre-existing judgments that the events really happened so no claim of false defamation can be predicated on a true history.

    Wagner pits USC Title 28 Section 1332(a) against N.R.S 78.630 as to in which court the shareholder case should be brought. Once again the arguments aren't meeting head on, with the WBGI lawyers pointing that this is a state statue which sets forth conditions to have standing and procedures for invalidating a board for mismanagement in state court, and Wagner using the Federal Diversity statute and the fact that he is suing WGBI (and other plaintiff) for in excess of 8 million dollars to make this a "Federal Case." At issue appears to be just how you can glue plaintiffs and claims together for 28 USC 1332(a). Expect the WBGI lawyers to respond to this point if ...

    ... if they don't move to hammer Wagner for the form of his reply. Wagner seems too close to the issue and doesn't seem to separate the facts, issues and arguments of this motion from his ongoing life history since 1996. In addition he starts out with a Wikipedia-level lecture on the general topic of res judicata which one might think would be unloved by a court which wrote in its local rules (7-1(b)(2)) "Memoranda must be concise and state each basis for the motion and limited citations to case or other authority."

    Note: Because I have only evidence that one defendant has been served, I fear this case might go a bit sideways. When Wagner responded to the complaint, apparently the other defendants did not get notified and perhaps have not been served yet. By not serving them all at the same time, it seems that Wagner allows them many bites at the apple as many procedural clocks don't begin until service is made.
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  5. Walter L. Wagner Cosmic Truth Seeker Valued Senior Member

    The referenced case is not related in the least to the LHC case, but since richard penner insists on referencing it here, and since it is public record, I will briefly summarize the facts as shown by the pleadings:

    Defamation Tort 1: In 2004 I helped set up a dedicated bank account. Company shareholders were promised in writing that investment monies sent in for that account would be used for a specific construction purpose (Visitor Center), and no other purpose. In response, about $200,000 in checks from about 20 investors were mailed to me, which I caused to be deposited into that account. I did not have spending authority on that account (my name was not on the signature card), but rather some of the defendants had such spending authority. Later, in 2011 shareholders began inquiring what became of that money, since the promised construction had not taken place. In order to hide an apparent misappropriation of that money for other purposes, one of the defendants wrote an email in which he stated to that shareholder that that account had never been set up, and that I had misappropriated the money. In fact, that account was set up, and the money was misappropriated by one or more of the defendants.

    Defamation Tort 2: In 2008, by use of fraudulent testimony, one or more of the defendants obtained an indictment against myself and my wife. He had, during his grand jury testimony, backdated by a full year when he and his associate had replaced us as company officers, making it appear we had signed a company document while no longer officers. State corporate records, and extensive sworn affidavits from other board members at that time, prove he lied to the grand jury. In 2010 the indictment was dismissed by the court due to the failure to prosecute by the prosecuting attorney, after he learned of that lying. In 2011 one or more of the defendants published on the company website the "indictment" as if it were being currently charged, when in fact it was dismissed in 2010 because it was bogus.

    Fraud Tort 3: Company shares had slowly increased in valuation from $30/share in 1995 to $520/share in 2005, while I had built the company up. In 2006, based on their claim I owed the company money, they sold my shares at a "public auction" attended solely by two defendants. No bidding took place, and my shares were sold to themselves at $10/share. Three months later, they advertised my shares to the other shareholders at $250/share, which price they maintained the following year for further sales at that price. The present share value is not known, as they are not now being sold.

    The present argument being presented to the Court by the defendants is that the Court does not have authority to order them to remove the dismissed "indictment" from the company webpage, claiming "res judicata". Yet the only res judicata in effect is that the case was litigated, argued, and dismissed (i.e. found in my favor) when the facts were shown not to be as claimed by that defendant.

    Additionally, they claim "res judicata" as to the misappropriation or embezzlement of the dedicated (Visitor Center) bank account, even though I only learned of that embezzlement or misappropriation in 2011, several years after the prior litigations had terminated. That account, and its missing funds, was never litigated.

    Finally, they claim that the fraud tort can only be litigated in state court (under a "fraud, waste and mismanagement" corporate statute), not Federal court, even though federal courts clearly have jurisdiction to try state court matters when diversity jurisdiction is present, as is the case here.

    The defendant company presently has about 20 days left to respond to my pending motion for an injunctive order directing them to remove the dismissed "indictment" from their web site. Additionally, the Court is being asked to direct them to provide me with addresses for the other defendants so they may be served.
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  7. rpenner Fully Wired Valued Senior Member

    I am not a lawyer (IANAL), and this does not constitute legal advice to anyone, including you the reader.

    Walter Wagner again struggles with process serving
    In the anti-LHC lawsuit, correct service to CERN was outlined by the Swiss government as a process via the US counsel to the Swiss counsel to CERN as CERN has normal immunity as a multi-governmental organization on Swiss soil. At no point did the Court disagree with this evaluation and nothing came of Wagner's "success" of getting the court clerk to note Wagner's assertion of a default predicated on the date of a defective service made by an ordinary Swiss process server. "Actual knowledge" of a lawsuit is no substitute under Federal law for the lawful due process of service of the complaint and summons.

    On Monday, Wagner filed a motion for an extension of time to serve the humans he claims have conspired to defame him.

    Here "good cause" probably means something like "Legally adequate or substantial grounds or reason to take a certain action." (West's Encyclopedia of American Law)

    I would argue that Mr. Wagner has not begun to show good cause.

    That's the Southern District of New York, not Utah where Wagner filed, but it's suggestive that one needs to document why service wasn't performed (in 120 days! -- longer if you count from when the first complaint was filed) and why the Plaintiff couldn't cure this problem by spending more resources (like hiring a professional).

    Nowhere is there a description of the lengths that Wagner went to ferret out these missing addresses other than to ask the defendant corporation. Nowhere is there case law provided that agrees that it is the corporation's duty to provide such information, which is unrelated to the central claim that these humans conspired to defame Wagner. Nowhere is there evidence that Wagner hired an investigator or contacted local authorities or the professional associates that these humans belong to or conducted searches of real estate records. Nowhere is there a description of the medical emergencies and other case load that so hampered Wagner's ability to find these defendants.

    Wagner's showing of "good cause for the failure [to serve the summons and complaint]" amounts to a claim of personal ignorance and he blames the defendant for not educating him on this point. How can that amount to "good cause" for anything? In this case which Wagner says is about millions of dollars, did Wagner spend even $10,000 in finding these humans? If not, then on what basis does he specify their home states and towns in the allegations?

    Yes, but this is not about summons and complaints. This is about "pleadings and other papers" as the title of Rule 5 tells us. Indeed, Rule 5(a)(2) emphasizes that Rule 4 covers (new) complaints, even if the individual has already been served and is now in default.


    Here Wagner invents procedures that don't exist in the United States that are patently prejudicial to the humans, and tries to shift the burden on the corporate defendant, ignoring the thirteenth amendment to the US Constitution by trying to impose a burden of work on that defendant.

    Wagner's motion, in all its brevity is here.
    Last edited: Jan 25, 2012
  8. RJBeery Natural Philosopher Valued Senior Member

    rpenner, how is it that you seem to be up-to-speed on these proceedings? Do you proactively follow the court case(s)? Are you involved personally somehow?
  9. rpenner Fully Wired Valued Senior Member

    When Wagner didn't discuss the physics of his claims, I was forced to read up on the law of his claims. In particular, I registered with the US Federal PACER system which provides all public court filings at $0.08 per page (less for certain documents should they be overlong).

    I am interesting in starting my own non-profit corporation, but the fund raising information provided by Wagner concerning his anti-LHC efforts raised questions that I haven't heard answered. According to one source, the anti-LHC effort has raised at least thousands, and I hoped to see that those funds were being spent for the purposes intended.

    In 2010, I went to the public appellate hearing of Wagner and Sancho before a 3-judge panel to see how two pro-se plaintiffs manage their case. When the appeal upheld the original findings against Wagner, Wagner appealed to the full ninth circuit ( I think an 11-judge panel would hear the case if any judge thought it was worth the time). I've been watching for an appeal to the Supreme Court (Wagner has tried to appear before them before on another matter) or another anti-physics lawsuit.

    Here, we see a lawsuit based on the value of Wagner's reputation and not the purported fate of the Earth. It's worth watching for a possible outcome that the court rules Wagner has no professional reputation of any value and/or that the lawsuit is part of a meritless pattern of lawsuits. The corporate defendant seems to be preparing evidence towards that which, I say, would possibly reflect on the anti-LHC and anti-RHC lawsuits of years past.

    As for this filing, I was aware of the 120-day deadline and was preparing material for when it expired.
  10. RJBeery Natural Philosopher Valued Senior Member

    Ahhh, ok. Well one thing is clear: he'll either succeed or he won't, so he has a 50% chance!

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  11. Walter L. Wagner Cosmic Truth Seeker Valued Senior Member

    Hey, those are better odds than I've been giving myself. But you might be right!

    As to RP, he's what is known in legal parlance as an "officious intermeddler". This case, of course, has nothing to do with the thread on the LHC.

    But as to the service, the new rules are reasonably clear, and now allow service of the Summons and Complaint on a defendant for whom an address is not known by leaving it with the clerk. Most state rules allow service by publication (in the newspaper) if you don't know the address, but not so in the federal rules.

    The intent is clear when read in conjunction with the preceding rule:

    Rule 5(b)(2)(C) mailing it to the person's last known address—in which event service is complete upon mailing;

    Rule 5(b)(2)(D) leaving it with the court clerk if the person has no known address

    A person cannot have no known address, and no last known address, if he has been served with the Summons and Complaint. That would imply a last known address (where the Summons and Complaint was served).

    So this rule (D) is indeed specifically tailored for when a party has never had a known address.

    The introduction to the Rule 4 does not require it to be applied only on papers served subsequent to the service of the Summons and Complaint, nor does preceding Rule 4 eliminate the requirements under Rule 5.

    Since this is a relatively new rule, I expect that the Court will either accept service on the Clerk, and have the one served defendant pick up the copies for the other un-served defendants, or require the served defendant to provide the addresses of the unserved defendants to plaintiff.
  12. rpenner Fully Wired Valued Senior Member

    Not according to the definitions at law.com or Wikipedia or nolo.com. I will stipulate that my efforts are of benefit to others. However, my only expectation of profit from my activities is the satisfaction of being shown to be correct and the rise of my reputation as this is shown to be the case.

    If you don't wish to immediately abandon your claim that I fit these definitions, then from whom am I trying to get paid for my work? CERN? prometheus? Switzerland? You?

    You didn't even credit me for my statement that your claims belonged on The Daily Show, so I know better to expect payment from you.

    ... other than a certain commonality of plaintiffs, tactics, the lopsidedness of factual support, highly idiosyncratic readings of statutes and procedures without supporting citations of case law and the smell of futility?

    I largely agree, but where possible one should rely on case law interpreting the rules.

    The 2001 Committee notes read in part:
    at the time, FRCP 5(b)(1) read as:

    Today, to clarify the style, but not change the intent, both 5(b)(1)
    and 5(b)(2)
    not just emphasize that they are talking about "this rule" (i.e. FRCP 5) and not the previous rule 4 which covers serving summons and establishing personal jurisdiction of the court.


    I disagree for the reasons stated above.
    I lack information on which to agree or disagree and this seems like an unnecessary digression.
    I agree.

    I agree that the intent is clear. Under the rule of interpreting statues and contracts, that words have meaning and you should not construe a contract or statue such that a given word has no meaning, what does it mean when Rule5(b)(2) begins with "A paper is served under this rule by ..." ? Clearly "under this rule" serves to limit the scope. Is rule 4 under this rule? I think not.

    If a person has been properly served with the Summons and Complaint, then they are a party to the lawsuit and are required to participate or suffer default. Thus in the interest of justice, there are higher standards for service of Summons and Complaint than "pleadings and other papers" as rule 5 describes itself.

    The 9th circuit addressed this in 2007.
    For someone already a party to the case, when the complaint was amended, service under FCRP 5 was appropriate. But this person's address had gone from known to unknown by virtue of him moving without telling anyone.

    The court clarifies rule 4/rule 5 with:
    So since the humans have never been served with the complaint in this case, Rule 4 still governs the service of the summons and complaint, which is the naive expectation of the lower court in the district case.

    A 2011 case is even clearer.

    A party, yes. But these humans have not been served and thus are not yet parties subject to the personal jurisdiction of the court.

    Huh? We are talking about how to serve the Summons and Complaint to the other named defendants -- the ones you haven't served yet.

    Huh? I thought the main changes to FRCP 4/5 since 1938 was the reduction in the role of Federal marshals in the service of process (in 1982) and the increase of electronic filing of pleadings and papers (more recently).
  13. Walter L. Wagner Cosmic Truth Seeker Valued Senior Member

    Officious Intermeddler from Wikipedia: "An officious intermeddler is a person who voluntarily, and without request or pre-existing legal duty, interjects themselves into the affairs of another, and then seeks remuneration for services or reimbursement."

    Remuneration from Wikipedia: " ... A number of complementary benefits, however, are increasingly popular remuneration mechanisms." I.e., money alone is not required to be considered remuneration.

    RP's remuneration expectation: "However, my only expectation of profit from my activities is ... the rise of my reputation as this (to be correct) is shown to be the case."


    Yes, the Cryer case, a non-binding trial-court opinion from another jurisdiction, takes the stance that one cannot simply dump the Summons and Complaint on the clerk, and then later seek default claiming service was effected.

    What is different in this case is that the trial court judge is being asked to assist in service, by requiring the served defendant's counsel either provide the addresses to plaintiff (which that counsel has) of the unserved defendants, so plaintiff can effect service under Rule 4, or alternatively have that counsel obtain the Summons and Complaint from the Clerk so that service can be effected.

    There is no effort here to obtain a default against the unserved defendants.

    And the Rule 5 clearly does imply that it applies in situations in which there is presently no known address (C), and there has never been a known address (D).

    So there appears to be no binding appellate case precedent interpreting the rule, and plaintiff takes a normal interpretation that defendants who are hiding, and attempting to keep their whereabouts hidden, should nonetheless be able to be served under Rule 5.

    Moreover, the introduction to Rule 5 reads:

    "(1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party:"

    Note that it says "these rules", including Rule 4 (and the other Rules of Civil Procedure)
    Also note, it does not say that Summons and Complaint is not applicable under Rule 5.

    Since I did not write the rules (I would have written them with greater clarity), I can only go with what they say on their face. If the courts interpret them otherwise, that is what they do, clarify rules by making case law.
  14. rpenner Fully Wired Valued Senior Member

    Did you not link to Wikipedia, because Wikipedia demonstrates that your reading is idiosyncratic and ignores the sentence before and the hyperlink?
    Rise in reputation is not remuneration as it does not flow from an employer (who you have, in any case, left unnamed) and it is not a "benefit" as the Wikipedia author links to a particularized definition of the word, peculiar to the jargon of American Human Resources. Stock options or life insurance or subscription to a towing service would be a non-cash "benefit", by way of a few examples.

    That is not what was shown. If you wish to assert that there is no binding precedent, I suggest "get thee to a law library" and find an annotated version of the FRCP, which will list the major appellate rulings interpreting Rule 4 and Rule 5.
    You did not demonstrate that they are attempting to keep their whereabouts hidden because at no point did you describe that you have expended effort looking for them. Did you (or your agents), for example, even leave the state of Utah, a state you claim holds none of the human defendants?

    If you read down, the Initial Complaint and Summons are not covered by Rule 5(1).
    And Rule 4(c)(1) reads in part: "A summons must be served with a copy of the complaint."
  15. michael_taylor Registered Senior Member

    People say scientists are clever, but this makes it seem like maybe it's lawyers who are really.
  16. OnlyMe Valued Senior Member

    Since even applying the term loosely, neither of the primary posters here, could be considered a lawyer, I don't believe anything about the cleverness or even intelegence of lawyers, can be drawn, from the discussion.

    From my limited experience, legal logic and scientific logic, do not always even appear to be remotely related.

    Have to wait and see what a judge has to say about the issue to know anything for certain about the legal logic involved...
  17. Trooper Secular Sanity Valued Senior Member

    Me, too, or did you already answer this with all the legal jargon, and I simply missed it. Also, did any famous physicists have to testify in person? Essentially, I want to know if this whole shebang had a beneficial or negative impact on your life. Any regrets? Just curious.

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    Last edited: Jan 27, 2012
  18. rpenner Fully Wired Valued Senior Member

    I think I have been quite clear that I
    a) have never graduated from an accredited law school,
    b) have never passed the bar exam,
    c) have never been admitted to the bar anywhere,
    d) consequently never had the legal right to represent people in court for a fee, and
    e) have no intention of giving people legal advice.
    All of a-e are summed up when I say I am not a lawyer.
    I also don't have a doctorate in any scientific field and I don't expect people in scientific fields to call me Doctor or Professor. My knowledge of GR is well-below that of someone who passed a year-long course devoted to that subject. And I suspect some of my facility with manipulating Clebsch–Gordan coefficients in my head has been lost to time.

    I do, however, have personal opinions on what arguments seem healthy, well-founded on evidence and known statues and cited case law and which do not.

    In part, I disagree. Logic is logic. But the practice of law is also about gamesmanship and is verdict- and outcome-directed. The practice of mathematics is an exploration of the particular consequences of a set of rules. The practice of science is a search for a precise, communicable, reliable and useful description of the universe.

    In math, to use a logical fallacy is to commit a mortal sin -- an act that requires reversal, contrition and a vow to never repeat it.
    In science, to use a logical fallacy is to commit a social gaffe -- an act that if repeated will see you shunned as a meritless nobody.
    In the law, to knowingly use a logical fallacy is to take a gamble that the other side will fail to call you on it. To unknowingly use a logical fallacy is to be a bad lawyer who runs the risk of drawing up contracts that don't say what was meant or overcharges based on a paucity of evidence.

    Most judicial rulings don't out-and-out say someone's logic was flawed. They use, for the most part, softer language to criticize lawyers as part of the assumption of civility in the legal profession.

    It seems James Blodgett has some history on this:
    Perhaps James or the other donor is the source who long ago spoke of donating $2k to Wagner and he or I garbled what was said.

    I don't see how James Blodgett's statement of belief is materially less damaging than the alleged statements in the present case that Wagner's accounting of benefactors of WBGI was informally kept on Post-It notes.
    No person testified in person, since no trial was held. Some Nobel laureates still miffed about Wagner's 1999-2000 anti-RHIC crusade voluntarily rang in with an Amici Curiae (Friends of the Court) brief. And the US Dept. of Energy rang in with some ex-scientist administrators.

    // Edit -- a different user_id "Transcept" is associated with a claim of donating $2000 to the Wagner-run website. It seems that this is a more likely source of my belief that an individual donated $2k.
    Last edited: Jan 27, 2012
  19. OnlyMe Valued Senior Member

    Rpenner, I appologize if my post was taken as any kind of negative statement personally. That was not my intention.

    This should have been read that I do not have a very high opinion of "lawyers" and their "twisted" logic.., and that by separating the participants in this thread from lawyers, I was not projecting that opion on them personally.

    While in theory, logic should be the same wherever one finds it applied, the gamesmanship (as you put it), involved in the practice of law, often corrupts any real logic. Logic should lead to some truth, where in law all to often, it is focused on what can be argued, rather than what is true.

    I have seen on at least four occassions, where I was not involved, individuals arrested and even in court where all parties for the prosecution knew they were not guilty, of the crime they were accused, but also believed they could argue or make a case.

    You are correct judges seldom rule on a lawyer's logic directly, however when ruling for or against, any argument they are, in effect also "sometimes" accepting or rejecting the logic of the argument. Where the "truth" is not always present or clear, judgement becomes subjective and even an argument with flawed logic can tip the scales.

    In one of those four cases mentioned above, after six months and two attorneys, a proof of evidence was requested. The judge in that case immediately dropped all charges against two defendants. They had just been in the wrong place at the wrong time and had not been involved, in any crime.., other than bipeing unable to afford a good attorney, who would ask the question at their first court appearance. I should add that in this situation the judge had not known that there was no evidence, before the appearance in which he dropped the charges.

    My post was more a comment, that though our legal system is an important part of civil society, it remains largely influenced by subjective decisions, rather than the kind of proof and logic that science, operates within.
  20. Read-Only Valued Senior Member

    I must agree with you. Thing is, when a case is taken to court, it's NOT about "finding the truth" by either side. It about nothing else except winning! The judge and/or jury are simply tools that both sides attempt to exploit.
  21. rpenner Fully Wired Valued Senior Member

    Wagner does apparently see benefit from my actions. 27 hours and 19 minutes after this post #389, the court clerk logs an affidavit filed by Wagner in support of the previously filed document -- the one I've been poking fun at.

    Paragraphs 1-3 are about how one Defendant should be ordered by the court to do Wagner's research and service of process on his behalf. He makes a not very spectacular case of demonstrating that his duty under Rule 4(c)(1) is not utterly trivial.

    This is not shown to be true by even Wagner's allegations since he said some of these humans are past officers of WBGI and therefore may no longer have associations with them. Wagner himself is an example of a past board member of WBGI who no longer lives in the state that he used to when he was working for WBGI.
    More like ethically impossible for WBGI's lawyers to serve the interests of their client and the interests of the client suing their client. In any case, Rule 4(c)(1) says that this is Wagner's "responsib[ility] for having the summons and complaint served within the time allowed by Rule 4(m) ...".
    Further, what basis does Wagner have for assuming that WBGI's attorney for this case has special knowledge of the location of those humans?
    Such a reading is deficient because it ignores all of Rule 4 which addressed summons, how summons are to be served, and the 120-day time limit for service of summons and Rule 5(a)(1) which does not cover summons.

    No case law shows that it does not apply when the address of the party is not known. Nothing on the face of Rule 4 shows that it does not apply when the address of the party is not known. Indeed, in that the rule allows for the us of Marshals in certain cases tends to support that it's probably Wagner's duty to ferret out these addresses and to expend resources to do so.

    Why? Because plaintiff wishes the law was written that way?

    And yet if they have not be served with the summons in the manner prescribed by statue, are they a party to the case? Does the court have personal jurisdiction over them?

    Just to illustrate unclear writing, this is an example of "Savings of up to 50% or more!" a statement which places no bounds on the amount of savings. In the same way this sentence says nothing about where service of process can be performed. Yes it may happen at your personal residence, but it may also happen at a picnic or when you are waiting in a courtroom for some other purpose. The remaining content of the sentence is most correctly written as "If service of process was legally executed, then Rule 5(b)(2)(C) could be applicable thereafter for service of all subsequent pleadings until such time as mail delivery to that address gets returned as undeliverable." If the person has legal representation for this case, then Rule 5(b)(1) trumps all of Rule 5(b)(2) as to which person gets served with papers.

    This is untrue, since nothing constrains service of process to happen at the defendant's front door. Rules 4(e) and 4(f) may allow service to be made in various ways.

    Why do you think "no known address" must be read as "no past known address" when the natural reading is "no address currently known to the filing party or the court clerk" ? Consequently, I don't think rule 5(b)(2)(D) has anything to say about summons.

    You are welcome, Mr. Wagner, to the results of my work searching Google Scholar -- but you don't seem to have learned anything from it. Also local rule 7-5 may apply.

    How is it somewhat contrary when they give as a section of the opinion the title: "Depositing Papers With the Court is Not Proper Service" ?
    How is seeking default or not seeking default relevant to the difference between that situation and this one since default is a declaration which the plaintiff seeks if the defendant does not respond to the summons? The issue of default only brings the question of what constitutes proper service into focus, it doesn't change the facts about what form of service is proper. Wagner does not claim the facts in this case are inapposite to the question of whether service of the summons under Rule 5(b)(2)(D) is permissible -- he just claims that this view must be "in error" without argument.

    Conflict of interest.
    Assumes facts not yet in evidence, because prior to this lawsuit did WBGI, a Nevada corporation with principle place of business in Hawaii, need a Utah lawyer?
    Their corporate attorney is not their attorney, this also may be a conflict of interest. They also only have that duty after you accomplish formal notification "...by first-class mail or other reliable means." Rule 4(d)(1)(G).
    Last edited: Jan 28, 2012
  22. rpenner Fully Wired Valued Senior Member

    A note added to the news coverage of the OPERA aftermath displays a sad misunderstanding of the anti-LHC propaganda campaign.


    PJ is the great founder and contributor to groklaw.net -- a website devoted to covering anti-Linux FUD, lawsuits and related IP news items. But on this one issue, I think she had drunk of the anti-science Kool-aid.

    My response:
    Other comments:


  23. rpenner Fully Wired Valued Senior Member


    Over a year later, Otto Rössler is still spreading the story that the Court ordered CERN to have a safety conference based on a misunderstanding of German and court procedure.
    Otto cites a paragraph from page 7 of the court minutes. http://www.wissensnavigator.com/documents/urteilsoriginal.pdf
    That is hardly a direction to any party to actually organize such a conference under the court's authority.

    A user using the pseudonym "PassingByAgain" cites paragraph 88 of the court ruling, which describes the plaintiffs request for the meeting and states that it is up to the defendant (who was not CERN but an agency of the German government) to make the decision to hold such a conference. http://www.justiz.nrw.de/nrwe/ovgs/vg_koeln/j2011/13_K_5693_08urteil20110127.html
    On May 15, Otto Rössler claims that by not posting under a real name, the user has given up his civil rights. On May 21, Rössler agrees that "The public advice expressed to CERN and the whole planetary public by a court is in no way a court order." Except that CERN wasn't a party to the lawsuit against the German government.


    (All translations via massaged Google Translate.)

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