Rossi v. Darden developments - Part 1

Quote from Eric Walker

Just added to the docket, doc. 72: "Reply to Defendants’ Opposition to Counter-defendants’ Motion to Dismiss Second Amended Counterlcaims" (from Annesser).

Thanks, Eric, we had a power failure here so I could not access anything last night.

When you put up a note like this, allow me to suggest you give the link to your Googledocs page. I knew where to look though it might have saved me a couple of minutes futzing around. Others will read this and have no clue unless they read the entire thread. The full page link doesn't change, I think. Here it is: https://drive.google.com/drive…Ktdce19-wyb1RxOTF6c2NtZkk
I have also added it, and the preceding notice of hearing notes, Doc. 71, and I expect to see the Magistrate's ruling, probably today.

This document (72) can be briefly summarized. It contains legal arguments to the effect of "We are right, they are wrong."

The context, however, is a Motion to Dismiss, and such Motions face a very high bar. If a plaintiff has any possibility of perfecting a claim in court, perhaps even with evidence they have not alleged yet, or by the most favorable (to them) construction of what has been presented, a Motion to Dismiss may fail, and the Judge has shown that she will go quite far to assume what seems possible from the pleadings.

What Annesser has asserted represent possible legal defects, that can be argued with a straight face. However, the judge will be primarily be concerned with equity, and, here there is a strong presumption that a plaintiff has a right to their day in court. I predict that these arguments will fail, reserving that she might order some clarification. The effect of that will be to delay the case, and my sense is that she will not want to do that unless it appears necessary to her.

I was told there are some new documents that have been posted on pacermonitor. I can't see them. Anyone download them and post them anywhere yet?

Quote from Eric Walker

MrSelfSustain wrote:

The highest number I see in pacer.gov as of this morning is no. 72.

I do not download the docket, which would repeatedly bill me for I don't know how many pages. I do test PACER for documents and this morning I tested 73, 74, and 75, finding nothing downloadable. PACER returns the same error if a document does not exist or if there is no downloadable document, as with various entries (which I get from Pacermonitor). That is, they are docket entries but not downloadable documents. Why does PACER give that non-informative error? Because this is a government operation....

Pacermonitor is designed to take advantage of this, to charge higher fees for access than PACER itself charges. I was surprised to find that Pacermonitor only shows the last week or two of documents. That is weird in itself.

Sometimes there is a document and I don't see it right away, but Eric is pretty quick. The only time I didn't pull down a document by the next day was when I was in the hospital for three days. So ...
Eric's archive: https://drive.google.com/drive…Ktdce19-wyb1RxOTF6c2NtZkk
I think the Newvortex archive I am maintaining is a bit more useful, because of how it is displayed, with notes. To access it, one must have a yahoo account and subscribe to newvortex using it:
https://groups.yahoo.com/neo/groups/newvortex/info
There is a files link from the group home page, when subscribed and logged-in, and then a subdirectory for Rossi v. Darden.

The mailing list is notified of all new uploads. There is not a lot of traffic on newvortex, but it is also possible to set the subscription to not receive list mail, but to only access the resources through the web.

On newvortex, this is document 73. It should be the same on the Walker compilation when he gets to it. I don't have the link handy at the moment.

This document and its arguments related to Document 69, a Motion to Dismiss pled by the counter-defendants, Johnson and Fabiani and their companies. This is distinct from the pending Rossi MTD.

Document 69 was covered in Rossi v. Darden developments

At that point, Bass was included as filing the Motion. This count refers to Bass.

C. Count IV Fails to Meet the Rule 9(b) Heightened Pleading Requirements

I've read the new document through. I previously stated the unlikelihood that the MTD would succeed. IH counsel here provides flesh for that. The 3rd party defendants are facing the problem that allegations based on any evidence at all do not have to be proven in a pleading, and there is evidence, which IH details and applies specifically. I now predict that all the counts of the IH complaint regarding the third-party defendants will be sustained.

(Planet Rossi has regarded the judge's decisions on MTD issues as if they were support of the allegations. No, a sustained complaint has not been accepted, but if the Judge assumes that all the statements made in the pleadings relevant to a Count, and the evidence provided in Exhibits, are true, and if then it is possible that the allegations could be proven to the satisfaction of the court (i.e., here, a jury), the judge must allow the Count to stand. It is not a confirmation of truth, but of some possibility, which might even be slim.)

These defendants may respond to this opposition, if I'm correct; if they do, I will review that to see if I can find a reason to change the opinion above.

Thank you Mr. Lomax for the update. I have a couple of questions I would like "confirmed" or opinion of what the current status is:

It is to my understanding that :

1: Nothing has been entered into the Docket by Penon (or his representative) I would assume if he does not respond to the IH counter suit, there would
be some kind of default judgment? Any thoughts on this? I do not really see a deadline date either. Am I missing one?

2: If Penon does not answer and stays absent, does this make the "ERV" report inadmissible as evidence for Rossi's suit against IH? My understanding that Rossi's $89 million lawsuit completely revolves around this report. Is ... "Without Penon, there is no report. Without the report, there is no $89 million. Without the $89 million, there is no lawsuit." ..... a correct understanding? I.E. if Penon does not appear, will Rossi's suit likely get tossed by the judge? Or will IH push more to the fact that the test was not the GPT and the report therefore moot anyway and have the judge consider that angle? A combination of both?

3: I believe Rossi (his lawyers) have not answered anything as to IH's counter suit. They have filed motions concerning it, but not an answer. If this is correct, a)How will this effect Rossi's suit against IH? Would this be reason for the judge to dismiss? b)Is there a date the answer must be filed by?

4: If Bass or Fabiani should decide to "strike a deal" and agree to provide defense testimony for IH, would this information come out before any trial? Would any documents appear in the docket showing either has decided to become a friendly witness?

Thank you for your opinions.

Quote from Bob

Thank you Mr. Lomax for the update. I have a couple of questions I would like "confirmed" or opinion of what the current status is:

It is to my understanding that :

1: Nothing has been entered into the Docket by Penon (or his representative) I would assume if he does not respond to the IH counter suit, there would
be some kind of default judgment? Any thoughts on this? I do not really see a deadline date either. Am I missing one?

There is no sign that Penon has been served. If he is not served, the Judge has given limited time to accomplish this. There cannot be a default judgment unless process has been served. It is possible that there is a publication process in Italy, I've seen some indications of that, i.e., that one could be served through some sort of newspaper advertisement, for example. However, I'm not sure. The judge ordered as part of Document 67, issued sua sponte (on the Judge's own initiative) which included:

Quote

Defendants shall show proof of service on Third-Party Defendant, Fabio Penon by
November 14, 2016, failing which he will be dismissed without prejudice.

Without prejudice means that they can refile if they can find him or otherwise arrange service. It is unlikely that Penon wants to be found; it has been claimed through private information by Alan Smith that Penon intends to appear to testify, but ... let's say there are technical difficulties ... Some sort of surprise testimony presented by Rossi absent cooperation in finding Penon and without opportunity to file interrogatories and depose Penon might be looked at dimly by the Court. Surprises at trial are disruptive.

Quote

2: If Penon does not answer and stays absent, does this make the "ERV" report inadmissible as evidence for Rossi's suit against IH? My understanding that Rossi's $89 million lawsuit completely revolves around this report. Is ... "Without Penon, there is no report. Without the report, there is no $89 million. Without the $89 million, there is no lawsuit." ..... a correct understanding? I.E. if Penon does not appear, will Rossi's suit likely get tossed by the judge? Or will IH push more to the fact that the test was not the GPT and the report therefore moot anyway and have the judge consider that angle? A combination of both?

I'm not certain about this. I have stated, however, that without Penon to testify regarding the Report, it's value would definitely decline. The fact of the report and its contents could be made Exhibits. Rossi could testify to having received this report. IH could be asked if they also received it. If they deny reception, they might be able to exclude it, but it is very unlikely that they did not receive it. So it could be entered, perhaps. However, if Penon is not there to testify, the whole Rossi case becomes much weaker.

There is a much more powerful argument in the IH arsenal at this point, and Penon's testimony might be irrelevant. Did IH actually agree to the Doral plant as a "GPT"? If not, it was clearly not a GPT, by the Second Amendment, which Rossi's attorney went to such lengths to establish as binding even though missing signatures. He will now be hoisted on that petard.

The Second Amendment require the signature of all parties (i.e,. IH, Rossi, Leonardo, and Ampenergo) to the start date of the GPT. It is possible that with sufficient showing of consent by Darden, estoppel could be claimed. However, Rossi did not address estoppel in the Complaint. He pretended that it was all clear and simple, referring to Doral again and again as the GPT, but the documents setting up Doral do not, ever, mention "GPT." The closest is the Penon proposed protocol which we just saw, wherein Penon called himself the "ERV" -- a GPT-associated term, though he was previously ERV for the Validation Test -- and refers to a 350 day test. Which also resembles the GPT. My opinion is that this is not nearly enough. Rossi, in his interrogatories and requests for production, appears to be fishing for documents that might show consent. The appearance, for me, is that he doesn't have any. Nor did he allege any specific conversation where such consent was shown, he described the test protocol negotiations *as if* they were about the GPT.

Instead of just being about how to measure power for a sale of power where IH probably DGAF, and was willing to "whatever, Andrea."

The non-appearance of Penon would not lead to the Judge "tossing the case." However, at some point, possibly soon, after Rossi has Answered the complaint, I expect we might see a motion for Judgment on the Pleadings to dismiss the case, based on a lack of showing on the critical issue of "GPT". The judge already indicated some possibility of ruling that way on the "Six Cylinder Unit" argument. IH did file a motion, then withdrew it. An argument based on the lack of written or other agreement will be much stronger, and so I think they are waiting to see what shows up.

Quote

3: I believe Rossi (his lawyers) have not answered anything as to IH's counter suit. They have filed motions concerning it, but not an answer. If this is correct, a)How will this effect Rossi's suit against IH? Would this be reason for the judge to dismiss? b)Is there a date the answer must be filed by?

Soon. Remember, the AACT was amended, which tolled the time. Then there is a pending MTD by Rossi, which may be interpreted as tolling the time. (Depending on that can be tricky, but maybe. What I think is a legal reality: if Rossi delays too long and IH files for a default judgment, Rossi could then Answer, making that motion moot. There are conditions where failure to Answer will lead to a default judgment. General advice: don't count on getting away with it, file on time. But a party can ask for additional time -- remember, IH did -- and it will almost always be granted.)

So the 2nd amended AACT MTD process is not finished. The last pleading in it, as to Rossi, was filed October 27. At this point, then, the judge will rule, I have been told within three weeks, it could be sooner. When she rules, assuming that the countercomplaints are not dismissed -- which I personally expect -- then Rossi will have two weeks to file an Answer, if I'm correct. I expect him to take as long as possible to Answer, because he might find something of importance in the discovery process under way.

Quote

4: If Bass or Fabiani should decide to "strike a deal" and agree to provide defense testimony for IH, would this information come out before any trial? Would any documents appear in the docket showing either has decided to become a friendly witness?

Probably unlikely. However, I would not be terribly surprised to see a motion by IH to drop, say, Bass as a defendant, perhaps based on responses by him in discovery, and there could even be an agreement, but I doubt we would see it. Something similar could happen with Fabiani, though it's a bit less likely, my suspicion. Johnson, much less likely! Johnson is in up to his eyeballs, and may have much more property to go after.

Quote from Alan Smith

Abd Ul-Rahman Lomax wrote:

Did I put it that strongly - or at all? I remember saying this about Fabiani, but Penon, I don't know anything much (recent) about. He can change his mind I guess, either way. Extradition from Italy? Extremely unlikely, even for Murder.

I suppose I could look for it, I recall it was Penon explicitly, not Fabiani, who had already appeared.

Extradition is not an issue. This is a civil case, and unlikely to become a criminal one, at least in the case of Penon.

Edit: Okay, this was about Penon:

Quote from Alan Smith

Abd Ul-Rahman Lomax wrote:

He is planning to appear, as is Fulvio.

Quote from Alan Smith

Abd Ul-Rahman Lomax wrote:

You'll have to trust me on this one. I will make a further prediction which it actually guesswork in part. But I'm not telling you which part. It is about something that currently seems impossible - and it may well be - courts are a lottery at times. Rossi has changed Lawyers to a practice with experience in technical matters in order to present -when the opportunity arises - technical proof that the 1MW plant is real and it works. This proof will (I think) be in the form of one or more totally independent replications of the technology by serious entities.

But we will have to wait and see what happens.

So, yes, Alan, it was that strongly, and repeated when questioned.

Quote from Abd Ul-Rahman Lomax

Quote from Bob: “Thank you Mr. Lomax for the update. I have a couple of questions I would like "confirmed" or opinion of what the current status is:

It is to my understanding that :

1: Nothing has been entered into the Docket by Penon (or his…

......

Thank you for taking time to reply. I have perused the documents but must admit, after a while I get a bit glassy eyed! I could not be a legal assistant having to type up those documents, for me it would be a bit mind numbing. But sometimes one has to dig deep and persist to find the nugget of gold, so I try.

I appreciate your feedback to bounce my own understanding off of. I find it a bit like the "arguments" discussed about LENR, various tests or equipment. If a person takes a position where they try to find problems with their own understanding, opinion or belief, one can learn and become even more informed and knowledgeable. If one develops a position and refuses to test their position against honest criticism (not a bad term), then one can become untrainable and close minded. Doomed to live in a constricting shell of their own making.

I have read various posts that there is no conspiracy to "bury" or inhibit LENR, that the field is doing this all by itself! Namely by the lack of cooperation or internal bickering over details. I partially believe this. I browse a couple of forums and their is much bickering and little collaboration! Too bad.

I believe it was Mark Twain that responded when asked a particular question.... "I will be glad to give you the answer to your question.... I do not know!"

Quote from Paradigmnoia

New Order regarding interrogatories entered.

Yes. Document 70 was a hearing request, with the IH responses to interrogatories attached. This Magistrate order covers objections in three of the interrogatory repspnses, the fourth, regarding Vaughn, is not mentioned.

It starts with the general objections, then proceeds to question or request-specific objections. The Rossi documents are not text pdf, so at this point, it would be tedious to retype them. However, I will briefly summarize. Do remember that the interrogatories appear to precede the Protection Order, so IH might still invoke protection with answers, either for maintaining general confidentiality, or "Attorney Eyes Only," which would keep the answer away from Rossi, but his attorney may see it. Recall that attorneys are officers of the court.

With reference to Document 70-1,

Quote

General Objections l and 2 are overruled and stricken. (Tr. 10:5-6)

1. sought protection under attorney-client privilege and work product privilege.
2. sought to protect third-party privacy. This specifically mentions a protection order to be sought, so this was essentially obsolete.

Quote

General Objection 3 is sustained in that Defendant shall provide a privilege log pursuant to the Federal Rules of Civil Procedure and the Iocal rules of the Court. (Tr.10:8-l 0

3. Technical details per rules and Instructions and Definitions apparently provided by Rossi with the Interrogatories. We do not have these.

Quote

General Objection 4 - the first sentence is stricken, and the second sentence is sustained. (Tr. 14:13-21 )

Quote

Industrial Heat objects to Rossi's Interrogatories to the extent that words or phrases used by Rossi in his Definitions, Instructions, and Interrogatories are vague, ambiguous, undefined, and/or subject to multiple interpretations. Industrial Heat will respond to such interrogatories according to its understanding of the ordinary meaning of such words and phrases.

The proofreader in me notices that striking the first sentence leaves "such" without referent. However, the Magistrate's intention appears clear. If Rossi's "definitions, instructions, and interrogatories" are not clear, following some reasonable interpretation chosen by IH, too bad for Rossi. Next time ask for what you want, plainly and simply and clearly.

Quote

General Objection 5 is overruled, in that to the extent that Defendant is aware of documents that are missing or have been destroyed, Defendant shall identify such documents. Defendant is under no obligation to conduct a separate search for m issing or destroyed documents. (Tr. 12: 14-21

This appears to be an error. General Objection 5 is about "E-Cat IP." It is handled in the next order.

Quote

General Objection 5 is sustained, in that the definition of "the E-Cat lP'' shall be limited to how that term is defined in the parties' License Agreement (Tr. 19: 1 1-1 5)

5. IH objected to the definition of "the E-Cat IP" as provided by Rossi as being broader than what was in the License Agreement. (Which is Exhibit B for Document 1 in the case documents.)

Quote

General Objection 6 is sustained. (Tr. 20:2-5)

6. Noted that there are terms in the Definitions that are not used in the interrogatories. IH reserved the right to object to those in the future. IH noted that the Doral address was referred to as the "testing facility," and states that they will respond to "testing facility" as referring to that address without thereby accepting the characterization.

(This, of course, refers to a core issue in the case. The Doral facility was not presented, prior to the setup there, as a testing facility, but as a customer manufacturing plant needing a power installation. There are a series of terms used and applied in the Rossi Complaint that are like this. When the case was initially filed, most observers simple accepted the characterizations as fact. It took me a while to see through it, from reading the Agreement and the Second Amendment. Rossi said this was a Guaranteed Performance Test, but what was required to set one up was not alleged as having been followed, it was as if the issue did not exist. Nor did Annesser claim estoppel, which would have been the proper move if a signed document was missing but there had been clear acceptance.)

Quote

General Objection 7 is limited in that Defendant's responses are to include persons or entities for whom the Defendant knows are acting or purporting to act on its behalf. (Tr. 21 : 7-10)

7. Objected to a requirement on the face to include those "purporting to act" for the Defendant; the Magistrate has asked them to answer according to its knowledge.

Quote

lnterrogatory No. l - Defendant will provide answers so as to identify those persons, excluding legal counsel, who contributed to answering interrogatories 1 , 2, 3, 4, 7, 8, 9 and 10. (Tr. 22: 17-21

Under Interrogatory No. 1, IH objected to providing detailed information about counsel, so the order excluded counsel. They provided information about who contributed to interrogatories 5, 6, and 11-15, as an answer to Interrogatory 1. It should be easy for them to handle 2 (who made up that list?), but as to 3, and 4, IH did not answer, presumably on advice of counsel. This was not addressed in the Order, so the inclusion of those in the Order is odd. However, I assume IH will simply answer that way. "This was on advice of counsel." Presumably the responsible IH officer would be Vaughn.

7 was a simple answer, probably provided by Vaughn (and it's public knowledge and already filed in the case) and there was refusal to answer some aspects of this question, particularly about the ownership of Cherokee. 8 was about all attempts to replicate or test E-Cat products, and IH promised to deliver that. 9, again, while objecting to a possibly overbroad question, promised to deliver documents and information regarding them. 10 the same.

As I interpret the Order, it simply asks IH to specify who provided the information in a response.

It appears that IH was not ordered to provide information about Cherokee, for example. However, I have not examined the rest of the order yet, which relates to 70-2 and 70-3. There appears to be no order relating to the Vaughn objections, in 70-4.

The next part gets a little juicy.

Quote from Shane D.

I think at times the EMDrive is easier to understand than this legal stuff. Kudo's to you for trying to simplify. So how long do we have to wait for "this next part that will be juicy"?

Well, you could read the document now. See below.

Quote

Eric has been a little lazy lately in providing us cheapskates with our freebie updates. He should remember that old saying about "biting the hand that feeds you".

One incident does not create a pattern. He has often "scooped me." It's all about when we have time. Never insult free and useful labor, even if it is not always what you want, when you want it. Unless you are paying for it. Send us a nice donation for this work, and if we accept it, you get to complain. As matters stand, nobody is feeding us for doing this, except "thanks" is nice.

(And I learn a ton.)

If you believe we are "paid FUD" from "the IH Empire," then complain to them. Maybe they would fire us for being lazy, as well as for all the stuff we write that is "off-message."

It's hard to find good help.

Okay, how to see all the case files on newvortex. Go to https://groups.yahoo.com/newvortex/info and follow instructions to join the mailing list. While you can join with only an email address and verification, to access the web features (such as the file space), you will need an associated yahoo account and be logged into it. If you have any difficulties, you can message me here, I'll get that as an email.

The file space is https://groups.yahoo.com/neo/g…tex/files/Rossi_v_Darden/

While you could set your user options for "web only," I recommend against it. There is not much traffic on newvortex, most of it lately has been file upload notifications, so every time I upload a Rossi v. Darden file, you will get an email notification. Heh! Sifferkolll subscribed, subscription is open. I will not know any personal data for subscribers other than what they show with a yahoo account. However, if you send a message to the list, it's an email and will have normal headers, and every subscriber will get it. All new subscribers are moderated. As soon as someone shows they are not a spammer with a relevant message, I approve them for free posting, unmoderated, and only have then later moderated a user (only one in many years) because of using the list to attack other members, without necessity.

I do sometimes use the list, more or less, as a LENR blog. I am not the only moderator.

The newvortex filespace linked above displays notes that make it easier to see what a file is about. There is a button in the yahoo access (under "Actions") that allows sorting the files alphabetically, and that will display all the files in the document order, I created the file names to make that work. (Otherwise the yahoo default sort is by upload time.)