(continued)
Quote.. that's all. The rest of the motion to dismiss paper is pure delusion, consisting of accusations and insinuation, no facts and even if this could also be said about the accusations in the lawsuit, then I ask myself, if Pace was really interested to convince the court to dismiss the case?
Now, perhaps Rends is familiar with a very different system of law. In the American system, it is the responsibility of the plaintiff to present a complete case. It is not the responsibility of the defendant, nor of the Judge -- nor the Jury, later, should this come to that point. Rather, the American system is adversarial. The Judge is not charged with the discovery of fact, as in some other systems of law. The judge is a neutral arbiter who insures that the parties follow rules of law and evidence. In a Motion to Dismiss, the facts alleged in the Complaint are assumed. However, there is a distinction between alleged fact and "conclusory statements." As an example, the claim that defendants intended to defraud Rossi is conclusory, not a fact established by the statements in the complaint. Rather, facts alleged in the complaint will be accepted. Did Darden say "quote", that was known to be false to him when he said it? That could be a kind of fact. What the Motion is saying is that if all the facts in the Complaint are as claimed -- or as shown in the Exhibits, and IH attorneys were careful to point out that what is in the exhibits is evidence that can contradict and thus negate what is in the Complaint -- the Complaint should be dismissed.
They are not going to say things like "but you could dismiss part and keep part." That would be doing the judge's job for her. She knows that. However, as it stands, if Rossi's attorney does not remedy the defects -- or provide cogent legal arguments for why the IH arguments are incorrect, that the judge accepts, the Complaint is toast. They are, here, arguing before an expert. She is not some bozo or bimbo.
You can learn a lot about law and about American law by reading that Motion. Or, you can sit and imagine that a document written by some of the best American attorneys is "pure delusion." The "facts" in it are entirely those shown by the Complaint and Exhibits. So there are no "new facts" there. There can't be. There can only be reference to the Complaint and Exhibits and then discussion of the legal points involved. This discussion is designed for the judge. Not for anyone else. The judge will know what they are talking about, and will not take offense at the obvious being belabored. It is their job, in fact, to belabor what is well-known, including citing authorities, so that the judge's job is made easier. The judge may cite those arguments in her decision. If they err in this, you can be sure that a competent attorney on the other side will point it out! -- and provide corrected authorities.
It's like a contest, and because attorneys are usually quite smart, it can be highly entertaining for those who like seeing clear thinking expressed with power and all the evidence needed. But if you are stuck on one side of a case, YMMV.
QuoteWe will see, I think Pace had failed in his attempt and the court will allow the trial.
The question is not yet the trial. It is more procedure. That the judge will allow the Complaint to survive unscathed is extremely unlikely. This is not just my opinion, it's the opinion of experts. The Complaint was a mess, and if you consider yourself a friend of Rossi, you'd better understand that, and hope that Rossi understands it, because, if he doesn't, he's completely screwed, blued, and tattooed.
This is what Dewey has been saying, with so many ridiculing him. Rossi is not well served by having followers who approve every move. If you are very smart, one of the worst things that can happen to you is to become surrounded by such. It makes you as stupid as the crowd. What one can hope for is at least a few followers with independent thinking, who want to see you successful, and who will warn you if they see you driving toward a cliff. And, of course, you will need to trust them, at least enough to listen carefully!
Now, on the signature issue. Beyond what was raised, the Second Agreement was also not dated. It was obviously drafted to be signed in October, 2013, but the date was not filled in, nor was any signature dated. I can't imagine an attorney overlooking this. Dating of documents is often crucial, as to putting, say, a document together with other evidence, such as the locations of parties. From the document itself, we don't know when it was signed, because it might have been delayed beyond October. Now, is that important? This is raised in the Motion because it's an obvious technical defect in the case. Without this signed agreement, the GPT was not performed as described, and the $89 million is not due (and might never be due).
However, what was the conduct of the parties? At trial, this may come out. Consider this a free gift to Rossi: if he amends the complaint to allege, explicitly, that the new test date was approved by all the parties, in writing, this defect could disappear. But that's not the limit of it. It is possible that the conduct of the parties made the acceptance of the new date obvious, and the lack of signature could be considered a mere formality (in spite of all the explicit language in the Agreement.)
There is another possibility, though, and this could be an IH defense. Suppose there was no written agreement to a new date for the GPT beginning. It was never agreed to accept this. So what then? If the second amendment is found to be valid, but there was no written agreement as to the actual starting date, this is an unperformed aspect of the Agreement, and it could still be performed.
(Notice that Rossi does not allege in the Complaint that the required written agreement on the date was ever executed.)
At this point, however, relying on technical details, ongoing, and neglecting the purpose and intentions of the GPT, and attempting to use it as a bludgeon to get IH to pay ... Bad Idea. And this is where negotiation would come in. It could be difficult, given that this suit was filed, but ... "Sorry, I was upset" can work miracles. Could Rossi ever say that?
Of course, if it's all been a fraud from the beginning ... this will come out and Rossi gets to wear blues again.