RIAA LAWYERS narrowly avoided a court sanction in a case where they sued a homeless man.

In Warner v. Berry, the RIAA sued a man who was then staying in a homeless shelter. Apparently undeterred in the least by the defendant's impecunious circumstances, big music's legal furies unleashed a minion to track the man down and serve him with a summons and complaint. The sequence of events that ensued went thusly:

On April 9, 2007, the mafiaa's process server posted a copy of the summons and complaint on the door of the defendant's former apartment, even though the plaintiffs knew that it was not his then current address.

On April 17, 2007, the recording industry plaintiffs asked for a postponement of a scheduled conference because their "attempts at service at Defendant's last-known address were unsuccessful." They requested a 60 day adjournment for "conducting a thorough address investigation to locate a current address."

On April 25, 2007, the plaintiffs' process server executed an affidavit of service, declaring that on April 9, 2007, at 3:50 p.m., she had "served" the summons by affixing one copy "in a conspicuous place on the property known as: 1713 Adee Ave Apt. 1 Bronx, N.Y. 10469" -- an address where they knew at the time that the defendant was no longer in residence.

Magistrate Judge Kevin Fox caught the discrepancy and called the plaintiffs on it. He observed that, at the time the plaintiffs requested postponement on April 17, 2007, the 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."

Magistrate Judge Fox found "the plaintiffs demonstrated they never intended to conduct 'a thorough address investigation'...." He concluded that the plaintiffs' representation to the court that they intended to conduct an inve stigation to locate defendant's current address implicated Federal Rules of Civil Procedure Rule 11(b) because it was made for the improper purpose of unnecessary delay.

US District Court Judge Harold Baer, Jr., agreed with the Magistrate in most respects, but he declined to sanction the RIAA's lawyers because he believed their misrepresentation resulted from sloppiness rather than an intention to mislead, "giving them as officers of the Court the benefit of the doubt."

But Judge Baer did deny the plaintiffs the default judgement they'd requested. µ

L'Inq
Recording Industry vs The People