Rossi vs IH: Leonardo Required to Provide More Definitive Defense Statement

The headline on e-catworld.com was misleading. This is a motion to strike, not a "requirement." It may or may not lead to more definitive statements of affirmative defenses, but the core issue is that the list of Affirmative Defenses is just a summary of conclusions based on fact alleged elsewhere in the Answer. If there were nothing else, Annesser's motion would make complete sense. As it is, it may be a technical detail of how the Answer is organized, which could be improved. In fact, one of the concerns documents Iv'e read about Motions to Dismiss are that they can backfire, by requiring the plaintiff to strengthen their Complaint, and that tactically it might be better to leave it alone for the time.

I have taken a look at the Motion to Strike, writing a study at https://groups.yahoo.com/neo/g…onversations/messages/846

A quick summary of what I found. The Answer contains a list of affirmative defenses. These are stated baldly. Annesser claim they are conclusory (and they are) and without alleged fact. However, there is fact alleged elsewhere in the Answer, so this is an issue of form.

Frankly, were I a judge, faced with this Answer and this Motion, I'd be a bit irritated at the idea that I need to search through the Answer to see if there is substantiation. I'd want the defendant's attorney to make that easy for me, by citing the relevant paragraphs in the Answer, which is how I'd think it would be efficiently done. It is possible that this is how IH will respond to the Motion, and they might add some details, requesting leave to amend their Answer, I think that might be the proper way to handle it if needed.

Here is an example where it is clear that there is fact alleged in the Answer that Annesser completely ignores:

Quote

Sixth Defense
6. Plaintiffs’ claims are barred, in whole or in part, as a result of Plaintiffs’ unlawful actions, including their conduct in violation of the Florida Deceptive and Unfair Trade Practices Act.

Quote

F. Defendants’ Sixth Affirmative Defense (FDUPTA Violation) Is Insufficient as
a Matter of Law.

Defendants’ sixth affirmative defense must be stricken because it is conclusory, insufficiently pled and fails to admit, deny, justify or avoid Plaintiffs’ claims.

To state a defense under the Florida Deceptive and Unfair Trade Practices Act (“FDUPTA”), Defendants must allege: “(1) a deceptive act or unfair practice; (2) causation, and; (3) actual damages.” Randolph v. J.M. Smucker Co., No. 13-80581-CIV, 2014 WL 1018007 at *4 (S.D. Fla. Mar. 14, 2014) (citing Mantz v. TRS Recovery Servs., Inc., 11–80580–CIV, 2011 WL 5515303 at *2 (S.D. Fla. Nov.8, 2011)); see also KC Leisure, Inc. v. Haber, 972 So.2d 1069, 1073 (Fla. 5th DCA 2008).

Defendants state none of these elements and do not allege nor incorporate facts to support a FDUPTA defense. Moreover, at no point in Defendants’ pleadings do Defendants allege any actual damages. Defendants’ FDUPTA defense is insufficient as a matter of law and must be stricken.

Display More

"Nowhere in Defendant's pleadings"? From the Counter-Complaint:

Quote

97. Only one of three conclusions can be drawn from the foregoing facts: 1) Leonardo and Rossi did not transfer and deliver all E-Cat IP to Counter-Plaintiffs; 2) Validation was never achieved and Penon’s reported COP calculations were false; or 3) both.

98. Each of these scenarios leads to only one conclusion: Leonardo and Rossi breached the terms of the License Agreement, either by not achieving Validation, not transferring or delivering all of the E-Cat IP to Counter-Plaintiffs, or both.

99. As a result of Leonardo and Rossi’s breach, Counter-Plaintiffs have suffered and continue to suffer damages including, but not limited to: a) both the $1.5 million and $10 million payments made to Leonardo in connection with the License Agreement; b) other payments made to Leonardo or Rossi to reimburse them for unnecessary (in light of the conduct alleged herein) services, equipment, and expenses; and c) multi-million dollar payments made to a third party pursuant to the License Agreement, see License Agreement § 16.6.

There is other detailed evidence presented indicating various fraudulent representations. It's just not listed under the "Affirmative Defense."

Quote from THHuxley

(4) This motion reads to me very like a cobbled-together delaying tactic. It makes many assertions with little substance. Many of the arguments are that IH has not shown facts which obviously would need discovery to unearth. I'd guess Rossi needs this Motion to provide more time for a defense. Possibly also he wants it for dramatic effect, so he can say to his current funders "look, IH are being stupid, my lawyers will crush them". This is not a successful long-term tactic except in the unlikley case things go Rossi's way. But Rossi has never had a timescale longer than a few months (except for the 1 year test itself). If he manages to get funding now, what happens in two months, for him, is a whole new game he will not worry about.

I did not do a thorough analysis, but IH seems to have asserted enough facts. It is as if Annesser just read the Affirmative Defenses pages and not the rest of the Answer. However, as I point out, it would be superior to refer to paragraphs in the Answer that are claims of evidence for the defenses.

This little incident with Rossi and my comment about kWh/h, with Rossi's apparent knee-jerk descent into frothing at the mouth, brought ought for me how insane he is. I don't think arguments for this or that rational purpose are necessarily cogent. If he has funders now, not merely his own money, will they believe his rants?

It's fascinating that Planet Rossi attacked IH for the "delaying tactic" of the Motion to Dismiss, so, now? Those Affirmative Defenses would be harmless unless there is evidence for them, and Rossi could easily require disclosure through discovery.

At the same time, though, it looks like he is fighting discovery subpoenas and probably the naming of counterclaim defendants. that was the magistrate hearing two days ago, the record not being available to us.

I'm seeing Rossi supporters falling away as it all gets too obvious. Increasingly, those left are also frothing at the mouth about "paid FUD." Rabies is contagious.

Maybe IH is truly evil, though I see no sign of it, but I'm not paid and neither is Jed, and I don't see anyone writing here outside of norms, with clever and deceptive argument.

@Shane

I don't think IH only want the Rossi suit to be over quickly. I think they want their 11.5M back inasmuch as that is possible -- by getting a judgement on the countersuit and then trying to squeeze whatever they can out of Rossi. Hey, Cherokee deals in real estate. Maybe they have a use for Rossi's many condos. That probably won't be quick... or cheap for either party. Regardless of the outcome, the lawyers always win though not if someone was sloppy enough to take on Rossi on contingency.

BTW, maybe Abd and Jed are foolish enough to work for free but I *am* paid as any believer can assert. I get paid by utility companies, the fission reactor industry, car companies, oil companies, coal companies and APCO was it? Whatever that is. I am getting rich fighting against Rossi! Yay! Go Rossi! Don't fold yet!

Quote from "MY oh MY"

BTW, maybe Abd and Jed are foolish enough to work for free but I *am* paid as any believer can assert. I get paid by utility companies, the fission reactor industry, car companies, oil companies, coal companies and APCO was it? Whatever that is. I am getting rich fighting against Rossi! Yay! Go Rossi! Don't fold yet!

Nope. Your're not Mary... since none of these entities are suicidal (except maybe Darden/IH) ...