Rossi v. Darden developments - Part 1

Two documents appeared today.

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The first, (DE 83), was an order from the judge sua sponte (on her own initiative) dismissing the 3rd party motion to dismiss, as moot, because the IH Answer was amended (at her order).

Of course, the 3rd party defendants now get to file a new MTD, perhaps, giving them yet more time to reply. Meanwhile Rossi wanted to see the judge's ruling on that motion, before completing his own Answer, but the order on his motion for more time limited the delay to no later than December 14, or 7 days from the ruling if that would be earlier. (I suspect it could have been expected that this motion to dismiss would be dismissed as moot, I think that would be standard if the complaint was amended.) As today's ruling despatched the MTD (for now), Rossi now has until December 12, next Monday to file his Answer.

The original motion now mooted was[/url]

• [url='http://coldfusioncommunity.net/wp-content/uploads/2016/11/0069.0_3rd_Party_Motion_to_Dismiss.pdf']0069-0_3rd_party_motion_to_dismiss Joint MOTION TO DISMISS Answer to Complaint … by James A. Bass, Fulvio Fabiani, J.M. Products, Inc., Henry Johnson, United States Quantum Leap, LLC. Responses due by 11/7/2016, and then this pulls down with it
• 0073-0_ih_opposition_to_69_mtd
• 0077-0_3rd_party_reply_re_mtd Third-party Defendants’ combined reply to Counter-Plaintiff’s response in opposition to third-party Defendant’s motion to dismiss Counts III, IV, and V of Counter-Plaintiff’s Second Amended Counterclaims and third-party claims

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There was also a notice issued today, DE84, of when the transcript of the hearing held October 14 before Judge Altonaga will be available through PACER: I give this information on the coldfusioncommunity.net Rossi v. Darden page. However, this is what PACER displayed for me:

Quote

You do not have access to this transcript.

TRANSCRIPT of the Motion Hearing and Status Conference held on 10/14/16, before Judge Cecilia M. Altonaga, 1-60 pages, Court Reporter: Stephanie McCarn, 305-523-5518 / [email protected]. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/27/2016. Redacted Transcript Dead line set for 1/5/2017. Release of Transcript Restriction set for 3/6/2017. (smn)

And I added: "See DE66,67"

We also have such a notice, DE 48, with respect to the Hearing before the Magistrate held earlier:

Quote

You do not have access to this transcript.

TRANSCRIPT of Discovery Hearing held on 8/30/16 before Magistrate Judge John J. O’Sullivan, 1-44 pages, Court Reporter: Carl Schanzleh, 305-523-5635. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/11/2016. Redacted Transcript Deadline set for 10/20/2016. Release of Transcript Restriction set for 12/19/2016. (Attachments: # 1 Designation Access Form)(hh)

And I added "See DE 0040, 42."

If someone is terribly interested in obtaining these, they can be purchased as described. It would be an appreciated service to find out how much they cost. We would see the actual arguments being advanced by the parties. We will see that in the case of that Magistrate hearing in two weeks, I assume.

Some hearings do not seem to generate that notice with their minute entries.

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There is another hearing scheduled for tomorrow per DE 75. "Discovery hearing December 6, 2016 at 2:00 p.m., on Plaintiffs/Counter Defendants’ Responses and Objections to Defendants’ First Request for Production to Plaintiffs." This hearing, requested by IH, is about DE 75.1 which shows Rossi's objections to requests for production, such as all videos of the Doral plant to date. Rossi claimed that nothing after the "test" was over would be relevant. He will lose on this, I predict.

Because this was misunderstood on e-catworld, I explain that an interrogatory or request for production must be answered (under oath) unless the one it is directed to objects. If they object, they are not required to answer, unless the requestor obtains an order. If there is no order, in the presence of an objection, there is no obligation to respond. This came up because a commentator there believed that if the objection was not confirmed, formally, if it wasn't even mentioned in an order issued, then the person was obligated to respond. He had it backwards. The error allowed him to think that the Magistrate Orders were a major victory for Rossi, when the reality was much closer to the opposite.

Quote from JedRothwell

Stack overflow.

That is because you are trying to understand it, perhaps as if this were just one event. This is a set of developments, at least three covered, that are more or less independent. Trying to put it together creates stack overflow.

This is a story that make little sense if it has not been followed. I'm not about to re-explain everything, "sua sponte," though I will certainly answer questions. I do explain the significance, but if you try to understand everything when you have missing pieces, you may not even understand what is simple and easy.

I think I'll place some dividers, see if I can improve it.

FIRST. WTF is a 3rd party motion to dismiss, and why would it be "moot"? To understand that, we need to know that IH has filed four versions of their original Answer to the Rossi Complant. Complaints and Answers are core documents. It is common that a defendant will move that a complaint be dismissed, and from such motions, it is possible that, instead, the judge will allow the plaintiff to amend the complaint, and it is also possible that a plaintiff amends a complaint simply to make it better.

At this point the core IH document is their Third Amended Answer, which includes a large pile of exhibits. These exhibits are listed on my case page under the original names for them, I have not downloaded or uploaded all the duplicated exhibits, even though they are presented that way on PACER.

The "Answer" is not just an Answer, though. This is the full title: THIRD AMENDED ANSWER, ADDITIONAL DEFENSES, COUNTERCLAIMS AND THIRD-PARTY CLAIMS . So not only does IH Answer the Rossi Complaint, they provide "additional defenses," also called "affirmative defenses," -- then include counterclaims, which amounts to IH suing Rossi, and then they add claims against third parties, i.e,. Johnson, Penon, Fabiani, and Bass.

So at this point, it is as if a new lawsuit started involving the "third parties." They get to then move for dismissal, etc. They did, originally in two groups, but the judge required them to file together (allowing them to separate if needed). So they filed a joint motion to dismiss. However, it was directed against the SECOND AACT (as it is sometimes abbreviated). Because the Judge, out of Rossi's own Motion to Dismiss, required some (minor) changes to clarify some claims, IH amended it. This made the 3rd party defendant's motion moot, because it was a motion to dismiss a document that is no longer of any effect.

Do *not* try to make sense of this, there are ways in which it makes no sense, i.e., it would seem that something much more efficient could be done. You will simply drive yourself crazy thinking that way. The judge, you can be sure, is not stressing herself, she is just dealing with what is in front of her. One step at a time. She saw that the filing made the motion before her (including the IH objection and the 3rd party reply to that) obsolete, at least technically, so she cleared her desk. If they still want to try to dismiss, they can still file again. (And the IH may object and they may reply, and the world turns many more times before it is resolved and then the 3rd party defendants will have to answer. I'd say that it is impossible that they could completely succeed, though Bass probably has the best shot. Maybe. Depends.)

But the judge is now much more visible as to how she will rule. They would be wasting time to simply repeat what they filed before. If they want to buy more time, they can do it that way.

This then had an effect on Rossi. He had seven days from the Judge's ruling on the 3rd party motion to Answer the IH countercomplaint. Because she now ruled (making it moot), he now has 7 days to file, i.e., we should see his Answer, providing much more clue as to his positions, by next Monday. That's the big event, coming soon.

SECOND. Some boilerplate was put up about a hearing transcript and how and when it is available. I took the occasion to note a prior such notice, and that transcripit is about to be available on PACER, scheduled for release that way in two weeks. That hearing was the subject of much discussion when it happened. Among other things, it was about Bass, but it probably also was about an attempted subpoena of Rossi's accountant's documents, and bank records, or was it? It might be interesting to know.

THIRD. There is a hearing tomorrow, about Rossi objections to an IH request for production. This may be of interest, other than the Magistrate order, we won't see anything on this for maybe three months or so. That is, the Magistrate will rule, we will see that, perhaps, I expect, including an order to produce all photos and videos of the Doral plant up to the date of production (as an example), but we will not see the arguments made unless someone wants to attend the hearing or go to the court terminal, until it appears on PACER.

Quote from Shane D.

Eric,

Keep in mind that while we may be moochers, you not getting out Documents 83/84 before Abd may be grounds for divorce!

To make it clear, I'm completely happy if Eric gets documents before I do. When he does, I hope I notice, because then I can save ten cents per page, by grabbing them from him. He is also welcome, of course, to grab documents from me. Or, even better, he could help maintain that case page, he could communicate with me about that.

Quote

That said, as always, thank you Abd,, and yes you too Eric. My guess is that no matter the legal maneuverings of Rossi, et al., the outcome is pretty much assured at this point. Just what IH has presented to the court already is very hard to defend. Only hope for Rossi at this point IMO, is to get this in front of a jury. There, as we all well know, all bets are off. That is his only chance. But there is a smart Judge standing in the way of that.

Rossi has a shot, probably it will be fired next Monday. The third-party claims will still be hanging fire, but that's not actually important for the primary case in Rossi v. Darden. to survive to a jury trial, Rossi will have to present sufficient evidence that a jury might legitimately support his version of fact and interpretation. Originally, IH killed four out of eight Rossi counts. FUD from Planet Rossi attempted to spit that as victory for Rossi, but motions to dismiss are generally considered long shots. 4/8 was indicative of a poorly drafted case, my opinion. Notice that the Rossi MTD was totally rejected, recently.

The core issue in my view has already seen some emphasis. I do not know why IH presented it relatively weakly, but I think they did, though they hinted at the core, which I expect will come if Rossi doesn't present clear contrary evidence: there was no agreement to a Guaranteed Performance Test, only to a demonstration and sale of power with Penon measuring power. Rossi, at great legal expense, established the validity of the Second Amendment (by estoppel, at least, and maybe there is a signed copy from Ampenergo floating around). So now that Second Amendment establishes very clearly that setting the date of the GPT requires the signature of all parties, once again.

Yes. If Rossi can get this before a jury, he might have a chance. However, this would be the ultimate test of his persuasive powers. He always filtered his audience; he won't be able to filter that jury. And, yes, he first has to get past the judge, who was already inclined to dismiss on the "Six Cylinder Unit" issue -- which is why IH filed a Motion for Judgement; my guess is that they withdrew it to allow the matter to become even more clear, before going for Summary Judgment again.

The lack of clear agreement, obviously required, is much stronger than "Six Cylinder Unit," even though, in fact, it was that unit that was to be the subject of the GPT. I.e., what she wanted to see in discovery was already known and clear. They are not the same. If a GPT had been allowed with the slabs, the six-cylinder unit problem could be estopped. But a core requirement, obviously necessary for strong business purpose, to avoid lawsuits and controversies over what can be handled with a simple document, can't be so easily set aside.

I don't think he can do it. We get a better idea next Monday, I expect.

The lawyers on both sides are laughing themselves silly on the way to the bank.

Quote from Eric Walker

It costs 80 cents now per page load just to list the documents in the docket, so lately I've been checking once a day, towards the end of the day (if I remember). At first I was taken aback at the low quality and the nickel-and-diming of the pacer.gov web site. But on further reflection I realize this is exactly the kind of document retrieval system I would imagine the US courts procuring and maintaining.

It is certainly irritating. Customer service is good if one has a problem, though. It ought to be for ten cents per page! To be sure, it's 150 pages free per 3 months. So the docket is only 8 pages? Thanks for mentioning it, I will download the docket once. But I'm not going to download it once a day, or week. It's easier to do a test query. The only problem there is that they don't tell users the difference between the document not existing, and it not being downloadable. So I check a few doc numbers.

Most users of the system are attorneys, I'm sure, and to them -- or their staff -- the time to access the system is worth much more than those page charges. Of course, they could make it all easier, in particular by simply displaying the docket and then allowing download from there, instead of the clunky system they have. As well, there is no date filter, so ... apparently one is expected to download the same data over and over for the docket, as far as I've seen. The system is what might have been nice twenty years ago.

Quote from Mary Yugo

The lawyers on both sides are laughing themselves silly on the way to the bank.

Lawyers are a common and easy target. However, I've known many, and no good lawyer laughs when their client is faced with increased expense. They are professionals, dealing with what most people would prefer to stay far away from. I look at the latest MTD, the one just mooted, and see a waste of time, running up legal bills for no particular gain, but the choice of whether or not to do this rests with the client, not the lawyer (except in certain extreme situations). Perhaps the client wants the delay and is willing to pay for the lawyer to do it. Perhaps the client sees value in running up the legal bills for his opponent. Something done solely for that purpose would be unethical, but it's hard to prove, so sanctions are not common.

Nobody is forced to hire a lawyer. It's merely highly advisable in certain situations. Such as when negotiating a $100 million contract. Anyone with a knowledge of law reading the Agreement and the Complaint is immediately impressed with how totally naive Rossi was, if he believed what he asserts in the Complaint. Can anyone here imagine that they would spend a year of "hard work" without making sure that the paperwork was done to assure payment? Would you rely on vague promises and assumptions? Rossi is aiming, I think, to play the victim game for a jury. "They fooled me!" Did they also fool your lawyers, Andrea? Those who would actually read the Agreement and understand it?

Lawyers are typically paid by the hour, though they may also work on contingency. The talent and training and effort involved in becoming a lawyer is considerable. Most lawyers expect to do well, financially, just as do professionals in many other professions. As lawyers, though, they only become modestly wealthy, perhaps. "professionally" wealthy. Millionaires, perhaps, not ordinarily billionaires. Lawyers who make fortunes do so by using their skills in other ways, as business-people, typically. Darden has a law degree from Yale.

Rossi made the choice to enter this arena, no lawyer forced him to do it. In dealing with Darden (and Vaughn), he was dealing with professionals, highly skilled. I have no doubt that if Rossi had delivered on the IP, had actually taught them to make devices that passed independent testing, they could easily have raised the hundreds of millions of dollars necessary to either bring products to market themselves, or to arrange licensing to others who would have done that. If Rossi is a con, he picked the wrong marks. They gave him every opportunity to make good, but instead he tried to trick them out of more money, and possibly to attempt to coerce them to pay with the lawsuit, imagining that they would be strongly averse to the publicity. He did not understand, then, whom he was dealing with.

(Rossi might still disappear, I wouldn't be surprised if he fled. He is not under any criminal indictment. He is not legally obligated to stick around and to keep his assets in Florida. Or his wife's assets.)

The miracle here is that the experience with Rossi did not sour them on LENR. It looks to me like the risky stand they took with Rossi actually increased their credibility with Woodford. I am assuming, of course, that they fully disclosed the situation to Woodford. As the professionals they are, they would not deceive an investor through material misrepresentations. That's a fast track to civil and sometimes criminal prosecution, whereas ordinary mistakes merely involve losing money.

IH, it now appears, is digging in for the long haul. They don't expect any quick profits, they expect to spend the entire Woodford investment and need to raise more money before they are done. Maybe a lot more money. the project they have undertaken could require billions. My general advice is to be very careful, to fund fundamentals, to establish the most solid basis for the field. It will all, then, become more obvious where to invest.

While lawyers are expensive and Jones Day, being the largest firm in the U.S., with high expertise to bring to a case, is probably particularly expensive -- though, of course, we don't know what they are paying, IH might inspire some pro bono work (I suspect APCO's association with them is pro bono, i.e., personal with McLaughlin) -- these people will also pay, and well, for services. Look at what they were paying Fabiani!

Industrial Heat is now dealing with many inventors and scientists in the field. Nobody is complaining but Rossi. It's obvious.

Very minor new document today, 85, rescheduling magistrate hearing for later today, 2:30 PM.

And then document 86 filed by the IH attorney cancelled the hearing. This was about Rossi's response to an IH request for production. Aside from some boilerplate likely of little importance, this was the core of the objection, together with the Request:

Quote

3. Defendants’ Instruction No. 9:
Plaintiffs object to the time period set forth in Instruction No. 9 on the grounds that any video, photographs, or other responsive documents and/or information which was “created, recorded or fixed in a tangible medium of expression” after the conclusion of the Guaranteed Performance Test is not likely to lead to the discovery of admissible evidence. All of the matters and issues raised by the parties take place before and/or at the conclusion of the Guaranteed Performance Test in February 2016. Accordingly, any photographs and/or recordings taken after that time would be completely irrelevant and impertinent to the instant case, nor could it lead to the discovery of relevant or admissible evidence as the matters complained of had already concluded.

Responses and Objections to Request for Production

Request No. 1: All videos, photographs or other recordings of visual images (regardless of the medium on which the recording is stored) created, recorded or fixed in a tangible medium of expression on or after January 2, 1015, of (a) the Doral Location (either of the inside or outside of the Doral Location), (b) some or all of the contents of the Doral Location, (c) any individuals inside the Doral Location, or (d) events or activities occurring at the Doral Location. This Request includes, but is not limited to, all of the “movies” and “photos” referenced by Andrea Rossi in his blog posting of May 1, 2016, a copy of which is attached as Exhibit A.

Answer:

Subject to Plaintiffs objections to the instructions above, Plaintiffs shall make the responsive, non-privileged, documents and/or information available for inspection and copying at the office of the undersigned counsel within fifteen (15) days of the date of this Response. In the alternative, the undersigned counsel will confer with counsel for Defendants and will coordinate to have copies of such responsive documents/information made for Defendants at Defendants’ expense

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So what happened? I have some guesses. The Rossi response was delivered to IH by email October 15. The Hearing request was dated November 16.

While it is possible that Rossi did not comply with the 15 day deadline, more likely they did, but did refuse to show any materials from after the Guaranteed Performance Test in February. I see no other reason to file a request for Hearing. However, to me, the possible utility of later video is obvious, because it could show what was inside the "customer area." Hearing a plausible argument from IH in the hearing, I think it fairly obvious that the Magistrate would order compliance. So maybe Rossi caved on this and simply supplied the videos. Much easier, and probably cheaper.

Otherwise, it is possible that IH, reviewing what Rossi provided, decided they didn't need the later material, so cancelled the Hearing, again possibly saving time.

I covered the issue in this post; this was an example where IH looked at a post-filing Rossi blog post and derived information from it, on which to then base their request. Rossi just didn't know when or how to shut up.

There was supposed to have been a discovery session(?) last Monday, Dec. 6th.

Also, I believe Rossi had a dead line of today to provide a response (answer) to the counter suit.

Is there any news on either of these?

Quote from sigmoidal

[quote='Bob','https://www.lenr-forum.com/forum/index.php/Thread/3816-Rossi-v-Darden-developments/?postID=43533#post43533'] ....

We should know a lot more by the end of the year, or mid-January at the latest.

Thank you for the response.
I must assume that nothing of note came from the Dec. 6th session. I do not know how long it takes for Pacer to post information after a session has taken place.

So with the slight delay, hopefully we will see something meaningful next week. However, again, it may take a while for any information to be posted.

If I could, I would really like to attend that session, it should be quite interesting. Although, I suppose at this point, it would just be the lawyers and Rossi would not put in an appearance.

I saw a post on eCat World where Rossi is touting another "expert engineer" with military ties that confirmed everything he has said. Of course, no name, no report... nothing other than "Rossi says". The next carrot to keep the faithful salivating is a public demo of the QuarkX. Although no details but it will be "the next milestone for sure"!

I made a post on eCat World asking what happened to the (3) 1mw plants that were purchased by the satisfied customer of the 1 year test. I stated that Rossi had posted back in May that the units were targeted for delivery in 6 months. He also stated that a plant was being purchased for the robot line. I included in my post that perhaps Frank could ask Rossi as Rossi seems to reply to Frank's questions. It should not be "adversarial" as these statements were all from Rossi himself.

My post did not make it through moderation.

If I ask in February what happened to this public demo being touted now, do you think anyone will care?

Well since everything (maybe even BLP with Mills) seems to be converging to January / February 2017 I am stacking up my popcorn reserves and await the news pouring in.

I read the doc. There isn't much new information. I have very little to say.

I'm still waiting for either I.H. or Rossi to throw the first real punch instead of jabs.