Better late than never, or better let sleeping dogs lie?

About the Rossi Motion to File Late confusion, insisted upon by both Annesser (initial Rossi counsel) Chaiken (partner at Annesser’s new firm), a bad sign, and discussion about this on lenr-forum.com.

0095.0_Rossi_Motion_to_file_late

It was obvious to me that the Rossi Answer to the IH counterclaims was due on Monday, December 12, being 7 days from the mooting of the 3rd party counterclaims, and I had mentioned this many times on lenr-forum, as I recall. This was the sequence:

Per a Rossi Motion for delay in answering, the court ordered: 0082-0_order_granting_time

Plaintiffs, Andrea Rossi and Leonardo Corporation, have seven (7) days from the Court’s order on Third-Party Defendants’ Motion to Dismiss to file their answers and affirmative defenses. DONE AND ORDERED in Miami, Florida this 29th day of November, 2016.

The 3rd Party Motion to Dismiss was mooted — equivalent to dismissed, except that it could be re-filed, December 5. 0083-0_dismissal_of_3rd_party_mtd

So Rossi’s Answer was due, per his own motion, December 12.

Now, the Rossi Motion for time was a bit unusual, because the 3rd party claims — the topic of their Motion to Dismiss — would not generally affect claims against Rossi, and Rossi’s motion to dismiss (with some of the arguments being similar, as I recall), was already dismissed in toto by

0076-0_order_on_rossi_mtd (November 16).

When the IH Motion to Dismiss was partly rejected, leaving the Rossi case in place, and it appeared to IH that they would be late answering, they filed a request for more time.

The Order on the IH MTD: (July 19, 2016). 0024-0_order_on_mtd

The IH Request for time was filed 0027-0_motion_for_extension_of_time_to_file It gave them three more days, until August 5, to Answer, from the normal deadline of August 2. They pled complexity due to the counterclaims. This request was, no surprise, granted.

So the normal time to Answer after a denial of an MTD is two weeks. The week allowed to Rossi in this case was special, not ordinary, allowed in case the new Order somehow affected the pending IH claims. His ordinary deadline, based on his own MTD’s denial, would have been November 30.

I thought the extension to December 12 a stretch, for Rossi already had from the filing of the IH Answer and Countercomplaint on August 5 to prepare his Answer, and it would be unlikely to require much tweaking from changes. After all, the claims in the IH complaint are to be either accepted (if true or totally harmless), denied, or sometimes there is an “I don’t know, therefore denied” answer allowed.

Instead of December 12, Rossi filed on December 14, two days late, 0089.0_Rossi_Answer, and had not asked for more time, a simple motion, where the mover writes an Order and gives it to the judge to sign. For short periods, no fuss at all will be made.

So Rossi was two days late. Big deal? I’m going to check this, but my impression has been that late filing only has an effect if, before the Answer is filed, the Plaintiff files a Motion for a Default Judgment. If that has not been filed, and as long as the Answer is filed before the default motion, it’s moot that it was late. In some cases, I think I’ve reviewed appeal on this, an answer can be filed even after a motion for default has been filed. (Later research revealed that such an answer will almost always be accepted, and problems only arise after a default judgment has been granted, and the defendant will be notified of and will have time to answer the default Motion.)

So this motion for retroactive permission to file late is entirely extraneous paper and judge time wasted, and Chaiken did not include an Order. What I’d have done if I made that mistake — and remember, I’m not an attorney, but say I was acting pro se — was nothing. Let sleeping dogs lie. The judge is not going to start yelling at me. If the plaintiff attempts to file a default judgment, I’d have my arguments, but it is highly unlikely for two friggin’ days. It is actually unlikely with much longer delays than that, as long as a default judgment has not been granted.

The Motion was overchatty. It really doesn’t matter what they thought. They were late, they realize it now, so if they are going to file a motion, it would be extremely simple, something like, “Due to unforseen circumstances, we were late filing, and we apologize to the Court and believe that we need the Courts permission for this late filing, which we hereby seek, proposed Order attached.” Done. But even that is probably more complicated than necessary. File it if the plaintiff requests or the Court requests it. Otherwise, save a tree and everyone’s time.

They give some shaky legal arguments for why they were confused. Has IH rattled their cage over this, threatening a default judgment? If so, when IH files the default judgment motion, that would be the time to raise the legal arguments. Very unlikely.

This request was signed by Chaiken, not Annesser, whereas the latter had submitted the Answer itself. We have thought that Chaiken might be the adult supervision, since Patricia Silver was removed as counsel. Now, I’m not so sure. Why is Chaiken making excuses for Annesser?

Not that it matters much. All these events, the pleadings and how they are presented, will affect how the judge sees the attorneys. In theory, that should not matter. In the real world, it can. Judges are trained to set aside such “impressions,” but they are human, like everyone else in the room.

Reading over the transcript of the Hearing that was just released, see August 30, 2016 hearing transcript now public, I have the sense that the Magistrate and Pace are colleagues, each seeing the other as one of “us,” and Annesser is an outsider being tolerated but treated fairly, because that’s the Magistrate’s job. I’ve lived in the South. At least then, Southerners were the soul of polite, famous for it, but … until you had lived there for twenty years, you weren’t necessarily fully human, you were an outsider, some sort of peculiarity. After long enough, people might start saying “Haven’t I seen you here before?”

Heh! But maybe I’m projecting.

Here is some legal advice on late Answers, and on legal deadlines in general. The basic advice is to file on time, or request permission to file late, but if you don’t, but you do file an Answer, the case simply moves to the next square, discovery. There is an issue of the plaintiff has filed a motion for default judgment, but all opinion there was that few, if any, judges would grant a default if the defendant has accepted the jurisdiction of the court and answered already, before the grant of default. The defendant could argue against the grant, and would probably prevail. Mostly, if no default judgment request has been filed, nothing happens. There is no prescribed penalty for filing late. Merely that one tempted the hand of Fate or the Court by doing so. If lightning did not strike, apologize to the heavens, but then carry on.

I’m going to be interested to see of the Judge does anything in response to this request for retroactive permission. My guess: she will grant the motion, without comment, but may say a few words privately. If not, the next motion will be for permission to go to the bathroom. Formally, in writing.


I cover on Planet Rossi or just plain Planet Confusion? a comment by Eric Walker that the Motion here had this as the last point:

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

I would object, too, because there is no problem to be relieved. The Answer was filed, and if IH counsel said that this was late, well, it was late and so what? If IH thinks something improper was done, they could file a motion to reject it and then Rossi would respond. Otherwise, the problem is? The Answer is there, what else is there to do at this point? It’s discovery time.

This makes me think of some kid complaining that someone else said what they did was Bad, and “Make them stop! Tell them it’s Good!”

If Annesser tried to get the approval of IH for his late filing, and they refused, I would have proceeded to file anyway. They are not the judge, nor are they the clerk of the court, the only ones who can actually stop a filing.

Research into the issue of late filing

Unopposed motion filed. Motion was due April 14, 2009. Defendant’s counsel was notified of failure to file May 4, 2009. Defendant prepared an Answer but did not attempt to file it, apparently, the motion does not state there was any denied attempt to file. Defendant obtained Plaintiff’s consent for the motion and moved the court allow the Answer to be filed. There is no sign of a motion for default judgment. It is unclear why the defendant — the U.S. Secretary of the Interior — did not simply file. Reference is made to Rule 12(a)(4)(A)

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action; […]

In this case, the court had set a period of 7 days, per the circumstances of Rossi’s original request for more time. Rule 12 was violated. But so what? Rule 12 does not specify consequences of failure to file on time. It would appear that if the court accepts a late filing, it is done and over, unless special circumstances apply. Did the court clerk refuse the Answer? Obviously not in this Rossi v. Darden case, because it’s in the docket.

Mechanics of Florida Civil Procedure

This document explains, in detail, many of the questions that have come up in Rossi v. Darden. Requests for leave to file late are only considered in circumstances quite different from the situation with the subject pleading, and it’s about requesting before filing, and before it’s late. No advice is given about what to do if late, but it is mentioned that leave to file may be granted even after a default judgment, in some cases, i.e., the default is set aside and the Answer may be filed.

Noting informal plaintiff opposition is recommended, in a request for permission to file late. However, my opinion — I am checking — is that if the Answer has been filed with the court, and was entered on the docket, it would take a plaintiff motion to challenge that, not just some expressed disapproval. “permission” will be moot if the action has already been taken, and it would seem that the most appropriate remedy for a late filing is to file! Only if this is rejected would permission of the court then be needed. Apparently with a two day delay, the clerk is not going to reject the pleading, particularly when precedent is very strong that if the clerk did this, the court would set it aside for such a trival delay. That clerk would get an earful from the judge! — Unless there is a clear rule.

Levine v. Lacy (1963) Late filing rejected. This was a response due within 21 days on a Motion for Judgment on the Pleadings. The defendant had attempted to transfer the case to Federal Court, and that was rejected. The defendant  did not ask for leave for more time, based on the attempted move to federal court. Bad idea. There was no attempted and rejected filing prior to judgment. Basically, by failing to file until a judgment was issued, on a pleading for such judgment, one risks a default ruling that may not be appealable. But if the response was filed before any contrary judgment, the matter becomes very different. In this case, the fuss was all moot, because the Answer had been filed. IH could not do anything to get that removed, all the case law I’ve seen so far, and legal opinion, is that there is no precedent for rejecting a filed Answer, without a motion being filed. A pleading requesting that the Answer be rejected because it was late would not be well received, where the lateness was de minimums, and might easily be rejected even after a year, there is precedent for that.

Handling Federal Litigation: Overview also has good overview. I wish I’d seen this page earlier. But it doesn’t have the kind of consideration I’m looking for here. When I have an overdue payment, I get the money into the hands of the payee as soon as possible, I don’t ask for permission to be late if I am already late. If I can’t pay, then, yes, I ask for more time. (I’ve done this with rent, always sending a partial payment. Landlords have actually thanked me for this, because many tenants will simply not communicate. And a bird in the hand (the partial payment, perhaps a half-month’s rent) is worth two in the bush. It shows good faith.

If the Answer is late, and not filed, file a request for permission, yes, and it will probably be granted if reasonable, but if the Answer can be filed, don’t complicate the judge’s workload by requesting permission when you could make it moot by filing the Answer! Any defense or argument you could make for it being reasonable to be late, that there should be no sanction, can be asserted later if needed, and will be just as good if the Answer was filed ASAP.

An Avvo page is quite specific: if an Answer has been filed before a default judgment is entered, the defendant is no longer in default. If, however, a default judgment has been issued, the court no longer has jurisdiction to re-open the case.This is California Superior Court, but I think this is quite general. The plaintiff must move for default judgment, and a defendant will be notified and if the defendant fails to answer that motion, then the risk turns into actuality. The original default is remedied as soon as there is an Answer. They don’t whip people for filing late without permission. It’s poor practice, but everyone knows that mistakaes are made, even by the best attorneys.

Can I File a Default Judgment Motion if the Answer is Served Late? is crisp and clear. This is of interest, my emphasis:

I have never seen default granted if an Answer was served, even if the Answer was really late. The law strongly favors resolution on the merits.

If the answer is late, the only issue for the court is whether to award fees for the default motion. Judges typically award fees for a default motion when the motion had to be brought to get the defendant to Answer. If you file a motion for default judgment after receiving a late Answer, you will lose the motion and you probably will not recover fees. Further, the judge might be annoyed at you for bringing a motion for default after you received an untimely Answer.

…. or for filing a request for permission to file late after you have already filed.

Wilson v. King reveals much that is right on point. This is a Federal Court case where the defendant was 10 months late filing an Answer. The plaintiff filed a motion to Strike the Answer as untimely.  The request was denied.

The plaintiff’s Motion to Strike claimed Defendant violated the Federal Rules of Civil Procedure and that allowing Defendant to file the Answer so long after the deadline “is not fair.” From this I immediately read that the plaintiff is pro se. That was not a winning argument, for sure. It is, however, how a non-lawyer might think.

The Court denied the motion to strike, and a host of precedents were cited. There is procedure for filing for a default judgment, and it was apparently not followed. The court added dicta:

5 The Court would be remiss if it did not acknowledge and disapprove of Defendants’ gross tardiness in this case. Defendants should not infer from the denial of the motion to strike that the Court will tolerate the unexplained and careless disregard of deadlines in the future.

Had the plaintiff claimed and established that he was harmed by the delay, the Court may have ruled differently.

So will Jones Day file an opposition to the motion? I very much doubt it, the question in my mind is whether they will file anything in response. A reactive individual might be tempted to file a response based on “it’s not true that we opposed the filing of the Answer,” which would strike me as “immature.” So what? If the motion is granted, the situation remains status quo, it changes nothing. Jones Day will respond as if the Answer was filed, and will handled the next step, discovery, as if the Answer is in place, because it is. They may ignore this motion, just as Chaiken could have left well enough alone. Were I the Judge, I’d consider dismissing the Motion as moot, because … the Answer was actually filed. I’d waste no time explaining this beyond that. It would establish the Answer as filed.

I’ll be interested to see what appears. This all has zero affect on the substance of Rossi v. Darden, it only increased Rossi’s legal expenses without benefit.


The Judge dismissed the order, D.E. 96 is an entry without a downloadable document, reading:

Order on Motion for Leave to File Tue 3:40 PM
ORDER denying without prejudice 95 Motion for Leave to File due to the failure to provide a proposed order, as is required by the Local Rules. Signed by Judge Cecilia M. Altonaga (CMA)

At this point one might hope that Rossi counsel will get a clue and just let sleeping dogs lie. I had noticed the failure to provide a proposed order, but thought she might instead deny the motion, since it was so silly. Because the dismissal was without prejudice, they could write one and refile, but … maybe they will smell the coffee.

UPDATE 

0098.0 _Rossi_Motion_to_file_late
0098.1_Proposed_order
0099.0_IH_Opposition_to_Motion 98

The original Motion to file late, missing a proposed order, was filed by Chaiken. The renewal was filed by Annesser. The Opposition was  filed by Pace. It reflects some of the fact and argument I presented above. It is not an opposition to the Answer, but to the claims in the Motion of improper IH filing, and to the granting of retroactive permission.

The proposed order rules: 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.

However, there were no adequate grounds asserted. The filing was late without permission. That’s crystal clear. But then what? Pace’s opposition notes that on December 13, they notified Rossi counsel that the Answer had not been filed by the deadline, and they then filed the next day. This is normal process (and the courtesy of attorneys for each other). A late filing does not call down thunder from the heavens, it is merely late. Only if it became a pattern of behavior, or was somehow egregious, which this was not, would this risk sanctions.

A late filing of an Answer risks a motion for default, but that risk, in effect, exists only before the filing, and before a filing of a motion for default. Pace could have filed a motion for default, but attorneys don’t do this to each other, this quick filing is only seen from pro se plaintiffs, playing a game of Gotcha! You were late! You’ll be Sorry!

When the Answer was actually filed before the counter-plaintiff’s filing  of any motion over it, this was all moot, over, done with. So why did Chaiken and Annesser file this beast of a motion?

Annesser filed late. Chaiken filed the excuse motion. Annesser refiled. We had thought of Chaiken as the possible adult supervision, there was some speculation that Chaiken would facilitate a settlement.

The players:

Annesser –according to PBY&A, showing him as “Litigation Counsel.” This bio does not mention his prior work with Silver Law Group. Dates found in articles about him are from 2015. His LinkedIn profile has more information.

Annesser — according to SLG, the profile is still there. According to it, he joined SLG in 2012. So he has perhaps four years of legal experience, it’s not clear. (If someone knows more precisely, let me know. He is still featured on the SLG home page.)

Chaiken — according to PBY&A, 20 years of experience. A Partner, but not a senior partner. His LinkedIn profile.

Pace — according to Jones Day, where he is a Partner. JD 1990, so probably about 26 years of experience. Jones Day employs, according to Wikipedia, over 2500 attorneys. His LinkedIn profile.


The judge ruled: 0100.0.pdf_Order _granting_95

She did not use the proposed Order. Instead, she wrote:

Before the Court is Plaintiffs’ Renewed Motion for Leave to File Answer and Affirmative Defenses to Defendants, Industrial Heat, LLC and IPH International, B.V.’s Counterclaim Out of Time [ECF No. 98] (“Renewed Motion”). Noting Defendants’ objection (see id. 3), it is nevertheless
ORDERED AND ADJUDGED that
1. The Renewed Motion [ECF No. 95] is GRANTED.
2. Plaintiffs’ Answer [ECF No. 89] is accepted.
DONE AND ORDERED in Chambers, at Miami, Florida, this 28th day of December, 2016.

This contains some technical errors. “Renewed Motion” erroneously

0098.0 _Rossi_Motion_to_file_late

0098.1_Proposed_order

referred to ECF No. 95, the original Motion, not the Renewed Motion (98). “Defendants’ objection” is referred to the Renewed Motion (98), (“id. 3”) not to the Defendants’ actual filed opposition (99). The meaning of “3” is unclear, but there is a paragraph in 99 that begins with “Thirdly.” Which points to a minor defect in the Pace filing, paragraphs not being numbered (which greatly simplifies later references).

As to the substance, she ignored the proposed order, and granted the original motion, by number, unless it was the renewed one by name. Since the renewed motion was a request to file the proposed order, I’d question whether or not this was a “grant.” However, what is the effect of her order? It is item 2. Plaintiff’s Answer … is accepted. But it was already accepted, not rejected, so she is simply confirming the status quo. What they had wanted was this:

 

 

Discussion on lenr-forum:

Eric Walker wrote:

Not exactly sure how to describe the newest document (doc. 95), but the plaintiffs have filed a motion for leave to file their Answer and Affirmative Defenses, over the objections of IH’s counsel. I gather (1) that there was some confusion about submission deadlines when IH submitted their third amended answer and counterclaims; (2) that the plaintiffs were late in filing their answer; (3) that in such a case it looks like it might be necessary to obtain the consent of the opposing counsel for a late filing; and that (4) IH’s counsel objected to this. Not sure if this is correct, or if it is, what the implications might be.

0095.0_Rossi_Motion_to_file_late has “Undersigned counsel has communicated with counsel for Defendants, who object to the requested relief.

This implies that they were opposed to the Answer being filed. No, it is not necessary to obtain anyone’s permission to file an Answer unless a default judgment has been granted. If a party files a request for a default judgment, and the other side, in default by not answering, files an Answer before judgment has been issued, then there is a problem. There was no problem here, merely a late filing, which could only have consequences if it were much later, or maybe if the other side had immediately filed a request for default judgment based on “no answer.” I very much doubt that Jones Day would file a motion to reject the Answer, because all the case law and advice I found indicated such a motion would be rejected and the judge might not be happy about this, coming from seasoned lawyers. So the objection was not to any “relief,” since there was no harm to Rossi, but just to wasting the time of the court and cluttering up the docket.

Shane D. wrote:

https://www.lenr-forum.com/forum/index.php/Thread/4745-Rossi-v-Darden-developments-Part-2/?postID=44391#post44391

[…] 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. Maybe Rossi’s lawyers were on drugs when writing this up? Or maybe they wrote it that way purposely to buy time while everyone tries to understand it? […]

Well, I think I understand it, but the understanding requires me to think of the Rossi lawyers as incompetent boobs. They gain no time with this at all, since the Answer is already filed and the Court expects discovery to begin with Rossi over the counterclaims.) They cite:

Believing that the Third Amended Counterclaims and Third Party Claims were a nullity by virtue of the Counterclaims and Third Party Claims being amended without leave of this court, Defendants did not believe that a response to the Third Amended Counterclaim was required. See Continental Illinois Nat’l Bank & Trust Co. v. Four Ambassadors, 599 F. Supp. 534, 1984 U.S. Dist. LEXIS 22067 (S.D. Fla. 1984)

The amendment was per order of the court, not “without leave.” But, okay, this nonsense is what they believed. I have linked to the cited case, above, but it’s a complicated mess. While it does appear to support the requirement for permission to file a supplemental pleading, that is not an issue here. This is about their Answer, a core pleading. Chaiken is asking for permission to do what was already done by Annesser, merely two days late. Only if Jones Day moved to strike the Answer as late, and the judge granted that over an objection that would then be written, would this have any meaning. Both events are at the “when pigs fly” level.

sigmoidal wrote:

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:

[Blah, blah, explaining the completely unnecessary detail in the motion.]

Judges don’t grant forgiveness. Wrong court. They grant relief. What relief is requested?

They don’t need any excuse to file late, at this point. When an Answer is late, a plaintiff may file a motion for default judgment. If the Answer has already been filed, this will be rejected. In order to suffer a default judgement, a defendant must not only fail to Answer, be served a motion for defaul, and fail to at that point to file an Answer before the court judges the default, nor to request more time for the court if they cannot answer yet. Such motions are routinely granted if not excessive.

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.

They want points for effort. How old are these guys?

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).”

This is nonsense, actually. Nothing material has changed since the Second Amended Answer, and the Answer they filed was quite simple. They created great delay with their Motion for Dismissal, and the 3rd party issue created more delay, the basis for their request for permission to postpone response. They could also have filed a general denial, and then, perhaps, amended it with leave of the court later. Legally, a general denial is adequate. However, if any facts alleged by the other side are to be “admitted,” that should be done. If in doubt, deny….

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.”

They probably object because the status quo causes no harm. The Answer is filed, and they are not requesting to amend it. Requesting permission to file late, when the answer is in the docket, is not subject to any motion to strike, is adding insult to injury, and then they cast aspersions on Jones Day, probably quite incorrectly. Unless we see a Motion to Strike, by which Jones Day would be joining Annesser and Chaikern in the Outer Darkness of Silliness.

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.

The Motion is moot, because the Answer has already been “accepted.” It’s in the docket. What is in the docket is not immune, it can be struck, but there would have to be a motion for this. If an Answer is maybe a month late, the Clerk of the Court may start rattling the defendant’s cage. If a motion for default has been entered, it gets slightly dicey, but still, that motion would only be granted if there were some very unusual circumstances, not present here.

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.

I promised to look at sigmoidal’s coverage of the Affirmative Defenses. I have not done that yet…. It is not unusual for some of these to be weak, though, because if they are not asserted, they might not be permitted later.

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.

I dislike seeing any ship go down. Sometimes justice requires it, and that is, indeed, the stuff of tragedy.

This is what I imagine the judge doing: Either nothing at all, or a motion is issued ruling like this: “Counterclaim defendants’ motion, D.E. 95, is dismissed as moot, as the Answer has already been filed.”

And then she might add:

“Retroactive permission to file late will not be granted by this Court. If a party needs more time, even after being late, requesting permission would also be in order. However, once the pleading is filed, it is either late or not late, with or without permission, but this Court would be loathe to sanction a party who has Answered late merely because of a technical error or brief delay.”

Or whatever she thinks and is willing to say.

What is especially ironic here is that the deadline was established at Rossi’s request, as 7 days after the handling of the 3rd Party MTD, which had given them very substantial additional time.

IH Fanboy wrote:

“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.

They have made no objection. They refused to consent to this motion, apparently, in this case, suppose Rossi had, before filing late, requested more time. I could see them objecting, because Rossi had already enjoyed a substantial delay. As I recall, there are no major changes since the original Answer, but say we look at the Second Amended Answer, including the Counterclaims, which are what are relevant here. This was filed September 19, Rossi has had since then to prepare Answers.

They moved to strike those complaints and to dismiss the countercomplaint entirely. The motion to strike was granted in part (only very little, and that is why the 3rd amended AACT was filed) , and the Motion to Dismiss was rejected entirely. November 16. At that point, normally, they would have until November 30 to file the Answer. They requested more time, expecting to have an additional 14 days, after normal judgment of the 3rd party Motion to Dismiss, which were their excuse for asking for more time. But the judge, sua sponte, mooted the 3rd party MTD, triggering the alternative delay, 7 days from resolution.

So they already had a total of almost three months. But the judge would still, almost certainly, have granted a *two day delay,* but what would have been dumb would be not to file the Answer, waiting for “permission.” Annesser was actually correct to file, though not to make the mistake in the first place. Filing a request for additional time would toll the time until it was rejected, my opinion. Better, though, would have been to have an Answer ready long before, in which case meeting the deadline of the 12th would have been trivial. And there is a whole law firm involved, this is indeed embarrassing, but waving a red flag pointing to the error is even more embarrassing. Why?

Jack Cole wrote:

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.

Not really. The “teacher” doesn’t have a docket that shows what has been accepted by the clerk. When parties file late, judges normally don’t do anything. Rather, an opposing party might file some objection or motion to strike or the like. If a delay is short, in the cases I looked at, this only was done with a pro se plaintiff who thought that the delay was “unfair.” To be sure, in that case, the delay was almost a year…. The motion was still rejected, though the court made a stern comment that this wasn’t any kind of precedent allowing delays like that. The plaintiff had not filed for a default judgment. Had he done so, my guess is that it might have awakened the defendant’s attorney from their slumber and they would have immediately filed, before that motion for default could be granted. If they had not answered then, the plaintiff would have been granted his requested relief. It was a very weird case where the fellow, a prisoner, does seem from his claims to have been screwed over by the City of Philadelphia, but I don’t think this was ever fully adjudicated….

Eric Walker wrote:

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.

With what result? If nothing is done, the Answer was filed. She isn’t going to strike it, and very likely will not give retroactive permission to file late, because it’s totally unnecessary. I noticed the failure to include a proposed order.

No permission was required to file the Answer under the circumstances, and giving retroactive permission is setting a poor precedent. She could have considered the motion and responded with no more words than it took to reject it for failure to provide a proposed order. I read this as a subtle reprimand.

An alternate explanation: she took one look at the complexity of the motion, and decided she didn’t have to read it since there was no proposed order. Maybe they would smell the coffee and not refile. So overall, this was an efficient response. Certainly, it did no harm.

Shane D. wrote:

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.

Shane D. must have been reading and misinterpreting doc. 99.1, the proposed order. The actual order was the next day. The Judge did not file the proposed Order, but a simpler one that did not “excuse” the late filing by giving retroactive permission, but simply noting that the Answer filing was accepted, which was totally 100% predictable even if IH had filed a Motion to Strike as Late. Such motions have a snowball’s chance in hell. It’s been Answered, dummies! Get on with discovery and stop wasting my time!

The JMP “confession” is irrelevant to a possible Motion for Judgment on the Pleadings. JMP has not Answered yet, and Johnson could have lied through his teeth, denying the obvious, and it would still not give any basis for Judgment on the Pleadings. The relationship is far too complicated. Discovery on the original Complaint and IH Answer is proceeding, and when that is complete, then we may see a Motion for Judgment (because all available evidence will be visible to the parties). There are a series of issues where this might be in order. Patience, peanut gallery! Eat your peanuts and cracker jack and watch closely. The devil is in the details. You can Learn Stuff here.

I love mysteries, don’t you?

Zeus46 wrote a typical content-free snide remark in response to Shane, apparently.

Shane D. wrote:

I am only going by what I have read…no hype. It is all part of the court record now. Authentic documents, evidence with Rossi and Johnson in their own words. None of which has been contested by Rossi, and never will. And we have not even gotten to the “GPT” yet. IH has submitted 3 terabytes of data for that, and so far Rossi nothing. What does that tell you?

So what do you want me to think, or say? I just go where the preponderance of evidence points me. Show me where I am wrong, and I will reconsider.

We will get to the “3 TB” issue. It’s fun! However, Zeus46 had something more specific in mind, and this time he explains it.

Zeus46 wrote:

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

He is correct. There is an issue of balance, and this must be decided by a jury, unless it is totally blatant and any other result would be clearly unjust. This is about Johnson and JM Products, which is a secondary issue, not primary. The primary issues are (1) was there a GPT as specified in the Agreement and Second Amendment? (2) If so, was “Performance” properly ratified?

The JMP issue is around alleged impropriety in the “Test” such that results could not be trusted. So possible misrepresentation in the formation and presentation of JMP as an allegedly independent customer becomes relevant.

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.

Again, not bad. However, I’m not writing pleadings here. I do cite precedent cases, often, when we reach that level of detail, but I’m not a lawyer and I’m not a paralegal working for a lawyer. I’m just a kibbitzer, or, say, a sports announcer, describing the action on the field and making arguments and evidence available for those who are interested. I’m being watched by at least one attorney, and so far, so good. I sincerely ask for correction when I err. There is a user on ECW who “corrected” me, but he was clueless himself. Still, I researched what he pointed out before concluding that. I learn when people criticize my writing, even if they are wrong.

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.

Again, he’s correct. However, from that position he slammed someone who didn’t have this knowledge, and that’s offensive. Had he merely posted this comment, I’d not be pointing this out, because it is helpful, though not, itself, backed with evidence. Users on discussion fora are not generally obligated to provide evidence or sources, but that’s a loss, in a way. Here, I can go back and easily add sources…. that could also be done on LF, but normally is not, because LF is not actually a content development site.

This was not about the motions, and LF administration acted to mash everything together like this, suppressing subsidiary topics. When I created the original Rossi v. Darden developments thread, it was to be a single topic to watch to see new developments, and ideally discussion would spin off.

Zeus46 wrote:

Shane D. wrote:
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.

Rossi requested everything and the kitchen sink, including all research data for years of work. 3 TB is still large. In addition to the 3 TB, they said “100,000 pages.” Those would either be actual pages, copies of documents, or more likely files, found with searches for key words as required, or other criteria as specified in the RfP. If data is presented in such a way as to create obfuscation, that could be sanctionable. Creating piles of data by inefficient scanning would be expensive and inefficient. Rather, they would supply what they already had. 3 TB will fit on one modern hard disk. They might simply have copied a server backup.

This does not tell us much. If Rossi does not satisfy requests for production, he could be sanctioned. This is still working out; there was a substantial hearing on December 20, and we have not yet seen an order from it. The transcript should be available in under four months.

These transcripts, from the one I have read, speak volumes about the attorneys and their relationship with the Magistrate.

Rossi is not obligated to satisfy our curiosity. I have been saying that about him since 2011.

Peter Gluck wrote a comment adding nothing.

AlainCo wrote:

Hard to know something else hours of video or a LHC shot that can produce TB of data.
Just to note that 3TB of data over 350 days is about 800kb/s 24×7

Confirmed. The period involved, though, is over four years. There would be many data sources, such as IH facility surveillance videos, all their collected experimental data — including the raw data, which can be voluminous. The number is not implausibly high. Most of it may be utterly irrelevant. IH did object to the over-broadness of Rossi’s original requests, and they were cut down, but, still….

Alan Smith wrote:

I can only assume it is CCTV footage from Raleigh/Doral, of which only a tiny part may be relevant of course. But by presenting it all as evidence, I guess Jones Day can summon up any part of it that supports their case.

Not completely wrong. It may include Raleigh. Not Doral. That would come from Rossi or JMP. Jones Day has not presented any of this as evidence of anything (other than dicta about it having been supplied). This is all data provided to Rossi by Jones Day pursuant to his requests. It is provided with attestation under oath, like all provisions in discovery. It’s admissible evidence, of a kind, but has not formally been admitted as yet.

Zeus46 wrote:

[…] 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!

Well, not really. More like stupid. Each of those pages would have a directory entry, so it is really just a directory — or set of directories — with 30,000 file entries. The individual files would be 100 MB. As bitmaps, they would be highly compressible, and, in fact, it is highly unlikely that Jones Day had these stored as such bitmaps. So they would have had to do quite a bit of work to create these files. Still, perhaps they had a document filing system that did create bitmaps from document scans for total security against loss of subtle information. Remember the Obama birth certificate flap, over artifacts of PDF compression.

I think IH simply turned over what they had, with minimal fuss. I have almost a terabyte sitting here in my apartment. Of course, most of it is junk, but it’s not worth the effort to go through it and throw away the useless trash. Rossi, I assume, got what he asked for.

Skipping more comments not relating to the Motion under discussion here….

However, LENR Calender wrote:

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

Thanks. I intend to, but not here. Perhaps it will be under one of these posts:
Does Rossi’s “customer” matter?
The owner of JM Products
Planet Rossi or just plain Planet Confusion?

(And I might consolidate those).

sigmoidal wrote:

Responding the same as I to Shane’s misunderstanding. Sigmoidal gave a detailed history which seems correct to me, but had not seen the Judge’s Order. That Order is described above. Sigmoidal’s description of the IH opposition is on-point:

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 persuing a lost cause?

I generally agree with Sigmoidal, but he seems to have missed a couple of points:

(1) The Answer was already “accepted.” We could read it from the Docket, right? This was all an exercise in moot argument over appearances.

(2) The Answer was filed by Annesser, and that filing was the proper thing to do under the circumstances (i.e., late for whatever reason, file it! — then worry about cleanup, which would almost never be necessary. If it ain’t broke, don’t fix it!)

(3) The Motion for permission to file late was filed by Chaiken, not Annesser, but the Renewed Motion was filed by Annesser. This, to me, speaks volumes about what may be going on behind the scenes at that law firm. If Chaiken actually believed that Annesser should have requested permission to file first, before filing late, his stock just took a major hit. Yes, if he was having trouble filing, the proper thing to do, and all lawyers know it, is request permission for extra time, which will normally be granted, and normally opposing counsel will support the motion. This is what friends do. In this case, Annesser was confused, somehow, he claims, about the deadline or even if there was a deadline (his argument seems to be that the IH 3rd amended AACT was a “nullity” because without permission to amend, which was total and complete confusion, but he realized before it was too late that the deadline was indeed the 12th. He didn’t file, basically, because he got hung up in something else. Ever listen to “How to Speak Hip”? There is a hilarious sequence on that old recording of how “hung up” is used in Hip. A generic excuse for anything. and, in fact, much cleaner than the reasons Annesser presents. It doesn’t matter why he didn’t file on time, unless he is facing sactions, and he wasn’t.

(3) Annesser then filed the renewed motion, with a Proposed Order, this time, which, hilariously, the Judge then ignored and wrote her own, much simpler and not problematic, even though it contains some small technical flaws. I doubt that she will amend it to fix these, because the entire sequence is moot.

(4) Yes. I think this makes Chaiken look bad, not so much Annesser, but then Annesser tosses his own hat into the cesspool. Obviously, they are not reading my blog! All Annesser originally did was inadvertently (perhaps) miss a filing deadline. It happens all the time, I’m sure. Lawyers are human, and that is why they don’t normally file a motion for default judgment for a day or two late! If that actually harmed the plaintiff, the lawyer could be up for a legal malpractice claim, and remember that these guys are all colleagues. Annesser in some of his early filings, didn’t seem to be thinking that way…. 

So why did Annesser file the Renewed Motion, with no changes? I suspect that the Partner at his firm was yelling at him for filing late, and demanded that Annesser fix it. This is why I think the larger problem is Chaiken, not so much Annesser who filed (according to this idea) because the Partner at his firm demanded it. Alternatively, this was to appease Rossi, who could have been angry about the late filing.

sigmoidal wrote:

BTW, if the court does not grant Rossi’s motion to allow the late response he’s at serious risk of being successfully sued, potentially for the 11.5 million, IH legal fees, and possibly even triple damages. IH may find it owns more Florida condos then it ever wanted. I wonder if Rossi has purchased his ticket to bolt the US, and where his bolt hole might to be?

No, this is quite incorrect. If the court does nothing, the Answer was filed, and there is no pending Motion to Strike. This thinking that late is Bad and will be Punished is primitive, common with non-lawyers, it’s odd to see Chaiken running with it. Lawyers mostly take great pains to file on time, or request additional time, so it’s unusual to be late without permission, but there is quite sufficient case law to know that, unless the delay is extensive, it’s harmless, and there is also plenty of lawyer advice on this out there as well, I covered that above. So some, at least, aren’t reading this blog. Boo hoo!

Not my problem.

As well, anyone who wants to write about the case will do a better job if references are sourced, and if one has the case page here open, there are links that can be copied quickly to any case documents. That case page is a far better option than the alternative, Eric’s googledocs page, if I say so myself. And I do say so myself. I use his page on the occasions when he snags a page before I do, so thanks, Eric. Saves me a little cash.

Eric Walker wrote:

In a brief order (doc. 100), Judge Altonaga has allowed the motion for leave to file to go through. However she notes the defendants’ objections in doc. 98, and specifically refers to section 3, in which they write (DE 98):

​3. On November 29, 2016, the Court granted Plaintiffs’ Motion for Extension of Time to File a Response to the Counterclaim, and ordered that the “Plaintiffs Andrea Rossi and Leonardo Corporation, have seven (7) days from the Court’ order on Third-Party Defendants’ Motion to Dismiss file their answers and affirmative defenses.” (D.E. 82).

Eric apparently missed that the Judge’s comments were in error. She did not use the normal notation for a paragraph 3. I cover this above. She intended to point to DE 99, the IH objections. It has numbered arguments, but not numbered paragraphs. Paragraph 3 in DE 98, renewed Rossi Motion, is irrelevant. Doc. 100Doc. 99, Doc. 98.

AlainCo wrote:

Things seems to advance well, whatever you think of the affair.
As I understand it is a discovery of facts affair, where each camp have to carve a pile of evidence and of complaints, trying to cancel others evidence and complaints as incoherent (not yet as false).
Well, some parties may be thinking that way, but see Discovery (law) on Wikipedia. As is covered in that article, the discovery process is designed to lay out all the evidence well before trial, and, to some extent, the arguments. You can understand more of this, perhaps, by reading the relevant case documents where the parties are arguing about objections to certain requests.
Material provided in discovery is generally admissible evidence; it is provided under oath, see the verification on page 24 of 70.1.
So when discovery is complete, all the facts and claims are laid out and skilled attorneys may then be able to assess how the case will be adjudicated, if it goes to trial, and may then find common cause in settling, which will avoid the costs of going to trial. That’s the theory. If a client is obsessed with “winning,” satisfied with nothing short of “full victory,” the client may disregard the advice of his own attorney, and proceed.
Suppose, for example, Rossi has no evidence other than his own testimony that Darden and Vaughn misled him in making the Agreement. Suppose he has no evidence for the consent of IH to the starting of the GPT, than the inferences he has already made. At this point, my opinion is that there is no ethical attorney who would advise him that he can prevail. But perhaps Rossi believes that he can convince a jury, by the force of his personality. He has the right to try! It could be an expensive choice.
Since early on in this case, Rossi has been claiming that he has a huge pile of evidence that he can’t talk about. Some have speculated that he is not revealing this, preferring to wait until trial. If so, it won’t fly. “Surprise evidence” will be rejected by the court. Newly-found evidence can be entered, with court permission, and it might be grounds for a postponement, all for obvious reasons. However, we do not know what Rossi has been providing in discovery. Not much, according to IH. That is going to be a problem for him!

Notice that IH does not have a standing objection to Rossi’s withholding of evidence. They may enter such, but if no evidence is provided, Rossi is more or less sunk, aside from sanctions for refusal to disclose what he has.

For those who follows, when can it be solved, judged about the facts ?

for me the settlement is improbable as whatever could be settled mean a definitive end to the loser, so it will be judged… when?
there was a calendar established by the judge?

 See 0023-0_order_setting_schedule Trial set for period of 6/26/2017 and other orders.
I recommend a careful reading of this Order, if one wants to understand what is coming and when. There is time in the schedule for some level of delay.
I do not know the effect of the 3rd party complaints are on schedule; they are currently under Motion to Dismiss (which I expect to fail). Until the Motion to Dismiss is rejected — if it is rejected — the time for the 3rd party defendants to file Answers, after which discovery starts, is postponed. I don’t expect to see those Answers until around the end of January. But notice that the ordered Schedule has all discovery being complete by February 27. That could be thin. I’m suspecting that the trial might be postponed. If the issues were clearly separable, there could be a separate trial, but they are intertwined.
After discovery is complete, then comes mandatory mediation. All parties must participate in mediation, but there is no sanction for failure to settle. 
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Author: Abd ulRahman Lomax

See http://coldfusioncommunity.net/biography-abd-ul-rahman-lomax/

One thought on “Better late than never, or better let sleeping dogs lie?”

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