Rossi vs. Darden developments [CASE CLOSED]

Quote from Shane D.

Quote from Eric Walker: “Not exactly sure how to describe the newest document (doc. 95)”

Eric,

Never read anything so convoluted. Not your post, but the document 95 you refer too. Even Abd...court too, will be hard pressed to make any sense of it.…

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I had a few minutes to look at this today. BTW, Merry Christmas everyone!.

I think Eric summed it up nicely. Rossi and his lawyer Annesser failed to file their response on time (Document 89), so this document (95) is their excuses and plea for forgiveness. As a legal document, it's fairly straight forward. Here's a quick analysis:

In paragraphs 1 through 5 Annesser (Rossi's lawyer) summarizes the events leading up to IH's submission of the third amended counterclaims.

Then in 6, Annesser states "Believing that the Third Amended Counterclaims and Third Party Claims were a nullity ... Defendants [meaning Rossi/Annesser] did not believe that a response to the Third Amended Counterclaim [submitted by IH] was required."

7 Simply makes the point that the court entered an order on Dec. 5th, regarding IH's third amended answer.

Then in 8 we learn for sure what this is all about: "In light of the Court’s recognition of the Third Amended Counterclaim [by IH] on December 5, 2016, Plaintiffs [Rossi/Anmesser] believed, perhaps mistakenly, that Plaintiffs had fourteen (14) days from this Court’s acceptance of the Third Amended Counterclaim in which to file their Response..."

9 States that they were unsure of the exact due date but made it their goal an intention to file their response by Dec. 12.

The main excuse comes in 10: "Due to a confluence of other deadlines and scheduling issues, as well as due to the length and complexity of the facts alleged, Plaintiffs were unable to complete their Response by December 12, 2016, and on December 14, 2016 Plaintiffs filed their Answer and Affirmative Defenses to Defendants IH and IPH’s Third Amended Answer...(D.E. 89)."

11, 12 and 13, in brief, say essentially 'we tried diligently and acted in good faith'.

In 14 they hope the judge agrees that the two day delay should not be a big deal: "Plaintiffs’ note the relatively small nature of the delay, and do not believe judicial proceedings will be negatively impacted, or that any party has been unduly prejudiced."

And in 15 we learn that IH is objecting to their request/plea for giving the extra 2 days: "Undersigned counsel has communicated with counsel for Defendants, who object to the requested relief."

I think the main take away from this is Rossi/Annesser continue to look like amateurs compared to IH's big league pro team. I would expect that the judge would give them leniency and allow their filing. But since Rossi's affirmative defense (if allowed) is so lame, I'm not sure how helpful this is.

I remain amazed at what we learned from Rossi's Affirmative Defenses, that he is trying to make the case that the Term Sheet, which is explicitly a Rental Agreement, was subsequently agreed by IH to be the GPT.

So probably the judge will give them a pass and accept their response. But what a lame response!

Well, it is somewhat entertaining, especially if you like tragedies.

Merry Christmas to all, and to all a good night!

"Undersigned counsel has communicated with counsel for Defendants, who object to the requested relief"

Making such an objection may not be a wise move and can gain the ire of a judge. Seems I recall Rossi/Leonardo counsel had not objected to a delay requested by IH earlier in the case.

Quote from IH Fanboy

Making such an objection may not be a wise move and can gain the ire of a judge. Seems I recall Rossi/Leonardo counsel had not objected to a delay requested by IH earlier in the case.

I believe AR/Leo also requested and was granted a delay in the past. It is a different situation when you miss a deadline. More like turning your homework in late and hoping the teacher will accept it because of the circumstances.

The plaintiffs' motion for leave to file (doc. 95) was denied without prejudice (doc. 96). It looks like this was a technicality resulting from failure to include a proposed order, and so perhaps can be easily remedied.

A small number of documents were filed today in connection with the recent motion for leave to file (docs 97, 98, 98-1 and 99).

Only if you believe the hype/armchair lawyering

I don't mind what you think or say! I was replying to this:

Quote from Shane D.

So when does IH request Rossi's suit be dismissed, based on JMP confessing they have no parent company as they claimed ? I expected to see that by now. Seems a no-brainer, or at least it did.

Cases don't get dismissed because of the 'clean hands doctrine' - more likely that the final judgement is tweaked against the dirty-handed party.

And who's to know whether that doctrine even applies here? Normally when someone makes a legal argument based on Common Law, they cite precedent cases, then argue why the case in hand cannot be differentiated from the precedent... A feature often lacking amongst any pseudo-legal arguments I've read on the topic.

Maybe you could argue that a contract could be invalidated if one party heavily/solely relied upon the 'lie' being true when agreeing to the contract, but the burden of proof would be on the party claiming that: It's not a summary issue.

Quote from Shane D.

IH has submitted 3 terabytes of data for that, and so far Rossi nothing. What does that tell you?

It tells me that someone's been filming lots of HD videos (or doesn't know how to use a scanner properly), and that some IH lawyer is having a laugh.

Anyway 3+1 documents (96 and 97-99) had been added to the Pacermonitor of the Miami court.
perhaps they can add something to this stagnantly undecidable discussion As explaining the mystery of terabyting by IH in wild contrast with the kitschiness of the 27 Exhibits.

peter

(96 and 97-99)

Sounds about right.

Re. Scanners... 30,000 A4 pages scanned at 600dpi (archive quality) in 24bit colour, and saved as a bitmap would take up 3Tb 3TB

If someone actually did that I would consider it malicious!

Yes a simple answer,

Energy in > Energy out?

no one knows for sure except Rossi

Quote from Shane D.

Gosh, this was actually easy to read. Didn't need a flow chart to understand like 95. Judge granted Rossi more time to respond. IH disagreed with Rossi's reasoning, and excuses for the request. End of story.

So when does IH request Rossi's suit be dismissed, based on JMP confessing they have no parent company as they claimed ? I expected to see that by now. Seems a no-brainer, or at least it did.

(I am not a lawyer obv)

I don't think anyone has mentioned this yet, but from my googling, it appears that the reason for the JMP parent corporation disclosure is for the judge to avoid conflicts of interests. It's not a "confession", it's a legal requirement.

Now let's look at what we have:

Johnson claims in the "compliance with OFAC" doc (page 25 of the licence agreement doc), that JMP is formed by an entity in the UK. Again here this seems to be part of a legal requirement (office of foreign assets control). We're making sure that no money goes to North Korea etc. This isn't about Johnson trying to show to Darden that JMP/JMC is this super legit company backed up by a successful industrial company.

Now, Johnson did warrant that JMC is owned by an entity in the UK. People who are saying that this could have changed with time have to note that Johnson did agree that he has to immediately notify IH. Anyway, I think the story that JMC used to be owned by a UK entity and not anymore is a little far fetched.

If Johnson lied, then he might be in trouble; but technically does that have anything to do with Rossi? Again Johnson's claim isn't about fulfilling some aspect of the licence, it's about satisfying OFAC requirements.

Finally, I think it is important to note that Johnson is talking about an entity. An entity does not have to be a corporation. Shane, you are using the word company when we are talking about a corporation. There are all sorts of possibilities here; I don't think JMC had to provide an exhaustive list of all ownership. Just corporations. JMC could be related to Johnson Matthey the way IH is related to Cherokee. Or it could be something else.

As far as dismissing the case based on that declaration, I think it's unlikely. THe judge probably read the statement, said "good", then moved on. If it is found that there is a problem with the OFAC declaration, Johnson/JMP might get into trouble. But would that invalidate Rossi's case? I don't think so. Again, the context of Johnson's declaration is important.

I'll let Abd dissect my ramblings on his blog, as again I am not a lawyer and I dont' even own an armchair.

Quote from Shane D.

Gosh, this was actually easy to read. Didn't need a flow chart to understand like 95. Judge granted Rossi more time to respond. IH disagreed with Rossi's reasoning, and excuses for the request. End of story.

I don't believe the judge has ruled yet on whether to accept Rossi/Annesser's motion to accept their late response, and I don't think this is the 'End of Story' (yet). That ruling by the judge would have to show up on Pacer explicitly granting the motion.

In general, I would think the judge would allow Rossi/Annesser the extra time, since it was only two days late. But we do learn a bit more from these documents, and I don't think this is favorable to Rossi.

Here's where I come to the conclusion that the judge has not ruled yet from the filings:

• In 95, the judge ruled 'without prejudice' to deny the motion because it did not include a draft ruling for the judge that explicitly states the ruling that Rossi/Annesser hope for. We know from 96 that this is standard procedure based on 'local laws'. What this means is that when you file this kind of motion, you are also supposed to write up the hoped for ruling that you would like the judge to grant. There are (at least) two good reasons for this: 1) it makes it explicit exactly what the party filing the motion is hoping for, and 2) it saves time for the judge, since they can either grant the motion as stated, modify the text of the proposed motion and accept that, or deny the motion. BTW, 'without prejudice' means that the judge is not ruling for or against the content of the motion - the court is simply rejecting it because it is incomplete because it does not include the required draft of the hoped for ruling.
• (I believe 97 is unrelated to this motion, as it seems to be a ruling on discovery and involves a different judge. We don't know what happened here as the transcript is not available yet and there is no further information.)
• 98 is Rossi/Annesser's draft ruling that they didn't include before but now have included so that they have a chance of their motion not being denied as matter of local procedural law. In it they briefly summarize the motion and then conclude with the hoped for ruling:
• Annesser proposes that the court grant the following ruling: "The Court has reviewed the Motion and has determined that Plaintiffs have demonstrated adequate grounds to permit filing the Answer [D.E. 89] after the time had expired. Therefore, it is hereby ORDERED and ADJUDGED that 1) the motion is GRANTED and 2) Plaintiff's ANSWER [DE89] shall be deemed filed as of December 14, 2016. DONE and ORDERED..."

Note that this [document 98] is Rossi/Annesser's hoped for ruling, not the judges actual ruling, which we have not yet seen. That's why I don't think the judge has ruled yet.
But there is more to be learned from document 99:

99 Is IH's objections to Rossi/Annesser's motion to grant them extra time so that their answer can be included. Here I've abbreviated IH's objections:

• Paragraph 2: "...[Rossi/Annesser AKA 'Plaintiffs'] propose 'excusable neglect' [as an excuse] for their untimely answer ... [this] is fatally flawed and erroneously attempts to attribute the source of their error to Industrial Heat and IPH. ..shifting blame is not excusable neglect, or even good cause...
• Paragraph 3: "Plaintiffs claim that [IH] did not have permission from the Court to file their Third Amended Answer. But, as Plaintiffs know, Defendants clearly had such permission from the Court’s October 14, 2016 Order, which stated that “Defendants shall have seven (7) days from the Court’s order on Plaintiffs’ Motion to Dismiss …[D.E. 67]
• Paragraph 4: "Plaintiffs suggest that the 3rd Amended AACT exceeded the scope of the Court’s October 14 Order. Motion at 2 & n.1. But the 3rd Amended AACT reflects precisely what the Court directed [IH to do] in the October 14 Order" [with specific citations provided showing that IH did indeed respond 'precisely' to what the court ordered]
• Paragraph 5: "Plaintiffs’ position that they thought the 3rd Amended AACT was a “nullity” and therefore “did not believe that a response to the [3rd Amended AACT]... cannot be accurate. On November 29, Plaintiffs moved for additional time to answer the 3rd Amended AACT. In that motion, they noted that the 3rd Amended AACT was filed on November 23 and their answer, absent an extension, was due on November 30. D.E. 80, 81. If Plaintiffs believed the 3rd Amended AACT was somehow a nullity, this would have been reflected in their November 29 motion. It was not so reflected because Plaintiffs never believed that the 3rd Amended AACT was a nullity, but in fact admitted that they were required to answer the 3rd Amended AACT. D.E. 80, 81." [Ouch!!]
• Paragraph 6: "Fourth, in light of the foregoing, Plaintiffs had no basis to believe that they “had fourteen (14) days from this Court’s acceptance of the [3rd Amended AACT] in which to file” their answer to the 3rd Amended AACT. Motion at 2-3. They admitted back on November 29 that their answer was due the following day, November 30, when they asked the Court for additional time to answer. The Court granted Plaintiffs such additional time on November 29, but only to “seven (7) days from the Court’s order on Third-Party Defendants’ Motion to Dismiss.” D.E. 82. Plaintiffs admit in the Motion that they knew the “Order referred to in the Court’s November 29, 2016 Order was entered on December 5.” Motion at 2. Therefore, they knew that their answer was due December 12. [Double Ouch!]
• Paragraph 7:"Undersigned informed Plaintiffs’ counsel on December 13, 2016 that Plaintiffs had not answered the 3rd Amended AACT by the required deadline. Plaintiffs filed their answer the following day."

So according to IH, they were the ones alerting Rossi/Annesser that they had not filed their response in the required time(!) But in Rossi/Annesser's response they give other reasons (we were busy, we didn't know we were supposed to, etc.)

In summary, IH argues, citing directly from the filings and the court ruling themselves, that Rossi/Annesser's story about reasons for filing the motion doesn't hold true. Although IH's arguments are obviously put forth to support their case, even if the judge grants the motion but is persuaded by IH's that Rossi/Annesser's motion included untrue statements, Rossi/Annesser will take a credibility hit.

In any case, Annesser looks either untruthful or not very competent as a lawyer. And the lack of evidence from Rossi's side looks pretty ridiculous to me. The biggest question in my mind is how long does Rossi want to keep pursuing a lost cause?

The JMP saga is interesting because the legal case and the PR case are quite different.

Legally I don't think it matters, directly as long as no-one has lied. The GPT does not need a customer. If, for example, JMP is owned by another (UK) shell company, then what Johnson said could be correct. Given the tangled web of what has been said I'm not confident about this but doubtless it will resolve itself and either Johnson is in a very bad position, or not.

Morally, Rossi lying about the customer looks very bad. The definite evidence of this will come out no doubt. This then is relevant legally, indirectly, because of "unclean hands" and fraud. Since IH says Rossi represented this customer as real to them, and Rossi hoped to extract $89M from them on the strength of valuable working product, that would seem directly relevant to fraud. That is the IH counter-suit more than Rossi's claim of course. I think (not sure) the legal definition of unclean hands is broader even than fraud, but don't claim to know how it will work here except it is not going to help Rossi!

Quote

In any case, Annesser looks either untruthful or not very competent as a lawyer.

Another possibility is that he is being given impossible and contrary instructions by Rossi (which I consider very likely) and doing the best of a bad job.

THH