Discussions of the 3rd Party Motion to Dismiss

Lenr-forum administration just split the Rossi v. Darden developments thread, locking the original thread, preventing replies to comments there, creating a new thread, giving the reason,“For better clarity.” 

When it was pointed out that having two sets of comments instead of one, on the same topic, wasn’t more clear, that Lenr-forum threads are already split into pages in chronological order,

Alan Smith wrote

Well, if you can count up to 2, it shouldn’t be a problem to work out which is the latest one. Different people have different ideas on this, and as barty is admin, let’s assume he knows best in this instance.

Of course, Alan Smith has long opined that there was too much discussion of Rossi v. Darden on LF. The history here: A new subforum was created for IH and Rossi, so that users could generically suppress notification of new topics if they didn’t want to follow them. Not bad, not a problem. Then Alan locked threads that were active, and, as well, there is no legitimate reason to lock topics just because they are old, because someone may have an appropriate reply to a comment much later. No, locking is done to suppress discussion, and when it is done by moderators who have their own ideas of what is important, and what is not, their own agenda, it can be a problem. I had been pointing this out …

As well, if users are watching a thread, splitting like this shuts them down, until they notice and watch the new thread. This was really a Bad Idea, unless the goal is to suppress discussion.

The issue is locking, not the creation of the new topic, which would be relatively harmless. There were active posts, there, recent, and now response to those posts is much more inconvenient. As pointed out, the new topic doesn’t make anything clearer, because LF already chops topics into display pages, it merely makes access a little more complicated. Splitting was an excuse for something. For what? I think it is fairly obvious. I started that developments thread, and it was one of the most-read pages on LF. Definitely it was much of site traffic. So looking at site activity, my profile was displayed, and I’m told that LF admin is “furious” with me. So, an appearance could be, they wanted to shut that down. Barty, who did this, is basically a nice guy, but part of what is essentially a Star Chamber, where discussion can be radically imbalanced.

I started the thread so that developments in the case could go into one thread, rather than being spread out in many.

Barty  wrote:

We could also say the previous thread was for 2016 developments and part 2 for 2017.

But back to topic now

Alan Smith likes this.

Of course Alan likes it, he may have requested it, knowing that if he did it, it might look bad. Or not, but what is shown here is a lack of understanding of how community discussion groups work, and a level of unclarity about the mission of lenr-forum. Any thread with substantial participation becomes too long to read in toto, this is a very poor way to create coherent content. Rather, more sophisticated tools would need to be added, or different software used. Or splitting that is much more work. Rather, LF is first and foremost a discussion site. Such a site can be used to develop content, by creating links to posts, and that can be done elsewhere, like here, and that is part of what I’ve been doing here. And, of course, there is an attempt — that will fail — to suppress that by disallowing incoming links from CFC. Everything that they are doing to attempt to control community behavior backfires, because they have no idea how to lead instead of just pushing buttons. I’ve seen the end of this many times, over the thirty years I’ve been involved with internet conferencing. The end is that the founders become disgusted with how much work it is, or how frustrating, and sites commonly go down, content is lost, etc.

If, instead, site administration positions itself as a servant of the community, and if site structure facilitates the formation of consensus, administration becomes far easier. The WikiMedia Foundation understood some of this, but also lost it in certain ways, they were naive about community consensus in large groups. Without facilitating structure, it easily becomes an adhocracy that is easy to corrupt.

If the goal was to organize by year, this was 12 days too early, and the years would have been used rather than Part 1 and Part 2. Further, developments occur by year, but comments can come any time, later. So why force comments that are replies to earlier events or earlier comments into a new thread? Instead of fighting with CFC — suppressing incoming links from here was blatantly hostile, as well as useless — they could cooperate. The tools of WordPress could be used here to create organizing pages, and, speaking for site administration here, we would assign necessary admin privileges to good-faith users. At present, any page here with links to LF must have the warning notice about 403 errors, but those will be easy to remove if they become unnecessary.

Now, indeed, back to the topic.

Peter Gluck wrote:

Document 90 published at the Miami Court Pacermonitor

I see this kind of reference also on Rossi’s blog. Documents are not actually published on Pacermonitor. For reference, the URL for Rossi v. Darden. Pacermonitor is a for-profit web site that resells access to documents from PACER. See the pricing page. (They also provide other services, as you can see, and I don’t know about them.) They provide free access to the docket itself, which then invites people, essentially, to view the documents, which you can do for $5 per document. Pacermonitor checks the docket, generally, five times a week, at midnight, but the docket that they display is only the most recent  files. I use Pacermonitor routinely to make sure I haven’t missed something.

Anyone can sign up for PACER itself. There is no monthly fee. As with Pacermonitor, you will need to provide a credit card, and billing is once every three months. The fee is 10 cents per page, with a limit of 30 pages. I.e,. the most that will be charged for ordinary documents is $3. Some reports available do not have a page cap, but users are warned. When billing time comes, if the charges are less than $15, they are waived. So you can download 149 pages every three months for free. (For those curious, I paid a bit over $50 for the third quarter of 2016.)

Unless you sign up for a pacermonitor account, and pay the charges described on the pricing page, you cannot view documents on Pacermonitor. It’s not useful to point people to that page, where all they will see is the docket entry, which, for the subject file is

90 motion Dismiss for Failure to State a Claim Mon 8:38 PM

Joint MOTION TO DISMISS78 Answer to Complaint, Counterclaim,,,,,, FOR FAILURE TO STATE A CLAIM as to Counts III, IV, and V by James A. Bass, Fulvio Fabiani, J.M. Products, Inc., Henry Johnson, United States Quantum Leap, LLC. Responses due by 1/3/2017 (Leon de la Barra, Francisco)

On the other hand, I had 0090.0_3rd_party_MTD here quickly, usually I beat Pacermonitor if I remember to check in the evening. If I wait until the morning, they will normally have the docket entry up before I see i, unless it’s the weekend, because if an attorney files a document in the evening on Friday, the clerk, who apparently works on Saturdays, doesn’t put it on the docket until the next morning, so Pacermonitor doesn’t have it until Monday night.

Except for a few early boilerplate documents, I have all case documents indexed on Rossi v Darden case files. The Docket (missing the latest files, I will only occasionally update it, because the case page actually covers everything important) is here: 0000-0_docket_up_to_12-06-2016.

Then there are other resources here for study of the case. Merge documents have been created that compile Complaint paragraphs and Answer paragraphs, so that they can directly be compared. What, after all, is a party “denying”? Paragraph numbers don’t tell much of a story! These are at IH Answer Merge with Rossi Claims and Rossi Answer Merge with IH Claims. I assume I will also do this with the 3rd party Answers, as I assume will be happening next year. It  could take a month or more, because of the delay the MTD introduces.

Like the case files page, those pages are intended to be neutral, no opinion. However, pages have been described, and if some opinion has crept in, comment is welcome on that post, for the purpose of corrections, and restoring neutrality — which is generally measured by consensus — is a correction.

As to opinions, we have them as well, both those of the blogger (right now that’s only me, but that will change), and of others, sometimes collected here. This page, you are reading is a “page,” not a “post.” This will be linked from my blog post on this page: 3rd Party Motion to Dismiss

barty wrote:

@Peter Gluck: Thank you for the information! Do you have access to it?

Edit: I guess it’s this:



(383.29 kB, downloaded 151 times, last: )

Heh! Used to be there was some courtesy to sources. That was my very own filename! All my hard work, copied and republished without any credit! Barty, it was not necessary to copy the file there, unless…. you want to increase site traffic for LF, and decrease site traffic here. And unless you want to avoid linking to CFC, which would not surprise me; since I’m told that LF staff is “furious” with me, and …. hmmm. One of the last posts in the old thread was a page that recommended the Rossi Answer Merge mentioned above. Gotta get that out of sight as soon as possible? Not if you care about your readers! However, angry moderators don’t care about readers…. Barty, you know how all this conflict could end, easily. Furious about me for what? If I put something here that is inappropriate, the first step would be to tell me, and suggest changes. That’s how normal human beings treat each other, in the real world. If there is enough hostility that direct contact — which hasn’t been attempted — wouldn’t work, then a mediator can be found. But that requires R E S P E C T.

I recommend it.

Document 90 published at the Miami Court Pacermonitor

Now we know why Dewey is nervous. The law consulting bill will increase, the chances for IH to win the case seem to vanish away … They (IH) urgently have to find a way to proove that the (their!!) machine in Doral doesn’t work!

On 3rd Party Motion to Dismiss, it is explained there why this may not cost IH much. This is a repeated filing of a document that was already filed, already opposed by IH, and with the 3rd party defendants already replying to that, it was ready for judgment, but then the underlying Counter-Complaint was amended, so then the judge took it upon herself to moot the motion without prejudice. This will only take a review to see what, if anything, changed, and if it’s not important (it may not be important), this is just the time to file a document again. As will be pointed out, these are legal arguments, fully. It is not relevant here if the “machine” works or not. What is more relevant here, but not yet being addressed with factual claims, is whether or not the “Chemical Plant” actually was such, whether or not Penon was deceptive in his Validation Report and the “ERV report” provided, whether or not Fabiani and Bass supported a fraud with all  this. That fraud could have occurred even if the damn plant was generating a megawatt.

And IH is not worried about legal costs, and this Motion is almost certain to fail, and Rossi made sure that very deep pockets existing on the Defendant side. No, the one most affected by legal costs is Rossi and maybe Johnson and the others. I’m not sure I’d have encouraged them to file a long-shot MTD, they mostly fail, unless the complaint is poorly drawn or it is clear that there is no case. All this will be pointed out in this thread. I have educated this readership well (some may have known these things already, but many did not).

Dewey Weaver wrote:

Quite the contrary Wyttenbone – the nervous one lives in Miami. His troubles are increasing and those associated with him are probably thinking about saving their own skin.

Most be a particularly excellent mushroom season on P.R – enjoy.

JedRothwell and Mary Yugo like this.
Charming. (Typical public internet discussion when there is clueless moderation.) Dewey is giving tit for tat, he was treated horribly by Planet Rossi, and he is, after all, an investor who saw his and his friend’s money wasted on someone who bit the hand that fed him. I’d be pissed, too.

Bob wrote:

[a long post with arguments about the factual issues in the case, not the legal ones, ending with:]

My take on the answer is that they are stating…. that we do not deny the factual claims of IH but simply deny that those actions constitute fraud in the legal sense. ?(

That’s right. This is a Motion to Dismiss. It is not about argument over fact, this is an attempt to settle the matter immediately by, in theory, accepting all the claims of the plaintiff and then showing that there is no legal basis for a judgment against the defendants. Eric has it:

Eric Walker wrote:

Just a reminder (my understanding only) that motions to dismiss in US federal law deal only with points of law and do not generally bring in evidence to support or refute claims that have already been made. They’re dealing with counterfactuals: even if such-and-such happened, such-and-such law would still not apply, etc. The party submitting a motion to dismiss assumes at the outset that all of the claims made against its clients are true. With this in mind, an apparent admission in a motion to dismiss will not be incriminating.

Yes. I wouldn’t say “incriminating,” this is not a criminal trial, but we get the idea. One who wants to study this can look back at the Motions to Dismiss already considered. See the Order on the original IH MTD. 0024-0_order_on_mtd

When Planet Rossi saw that order, they were rejoicing, because they believed that the judge had decided that all the “facts” she recited were her opinion or conclusion. No, she was just assuming that what Rossi had alleged was true! Then she looked at the legal arguments, and dismissed four out of eight claims. She left in claims that she already knew were weak, because it might be possible that Rossi could establish them with evidence, found in discovery. Four out of eight was very high, most MTDs fail. Rossi’s MTD against the IH claims was totally dismissed: 0076-0_order_on_rossi_mtd

To understand Rossi v. Darden, I highly recommend reading those Judge’s orders on the first two MTDs. In the first, she states the case from the Rossi point of view. That’s why Planet Rossi was cheering. In the second, she stated the case from the IH point of view, and it was an excellent summary, she is one smart cookie, and she pays attention. Planet Rossi has totally ignored the dismissal of Rossi’s MTD, and, as well, there is no notice visible, AFAIK, that the Rossi Answer has been noticed. Normally these people pay close attention to every word from Rossi, pouring over his blog comments attempting to extract meaning, but, here, a lengthy document with Rossi making official statements, presented in court and … did you hear anything? I didn’t! Must be crickets.

IHFanboy wrote:

[an extensive copy of some sections from my Rossi Answer Merge document, for paragraphs where Rossi’s answer was simple: “Plaintiffs deny the allegations contained in Paragraph 77 of the Counterclaim and demand strict proof thereof.” Hmmph. Copyright violation.]

IHFB later added a note acknowledging that he’d misunderstood the topic. As well, I have, on Rossi answers the countercomplaint , covered this “demand strict proof” bit, pointing to legal opinion on that archaic practice. Legally, it is enough to deny, and one is not obligated to provide proof in an Answer. However, to see stronger answering practice, look over IH Answer Merge with Rossi. Where possible, IH admits allegations. In the Rossi Answer, there are often blanket denials with no admission of what is obvious fact. There are three possible answers, essentially: admit, deny, and “don’t know.” In some cases the court right require an affidavit of non-knowledge, one source pointed out. However, IH fleshed out their Answer with a pile of evidence, and Rossi is sometimes denying plain fact. That may or may not harm him, but it can increase legal expenses. Whatever can be admitted will not take up any court or lawyer time, it will simply be accepted as true. On the other hand, Rossi gives some “explanations” that probably do him more harm than good. His explanation of the exclusion of Murray more or less establishes, if it could be used, the non-delivery of IP portion of  the IH case.

Shane D. wrote:

Eric, While that may be true up to a certain point, I don’t think it will be missed by the court that 3rd Party Defendants are arguing it does not matter if what IH alleges, and provides evidence of, is true. And from my reading that is exactly what they are arguing.

Fortunately, we here have a much simpler job in sorting this out than the courts. Even the remaining Rossi supporters have said if Rossi/Johnson are proven to have lied about JMP’s ownership and operations, than they would abandon Rossi. And few could read this latest and come away convinced JMP was a legitimate company formed in the UK, affiliated with Johnson Matthey, with a real product and a need for the steam….well maybe Wytennbach could. :)

Shane has not understood. It is exactly what they are arguing, because the allegations made in the countercomplaint will be presumed true. It would be an error for any Rossi supporter to abandon Rossi because Johnson and the others have not presented evidence here. I would probably have advised them not to bother with an MTD, but if they are going to do it, it must be precisely what Shane seems to be criticizing.

It is worth, in my opinion, paying attention to how this process works. There is a dispute, a big one. How is it to be resolved? It is resolved in stages. The first stages clarify and formalize the claims. The second stage will create a body of admissible evidence, all attested under oath. Presenting false witness under oath is a criminal offense. Mistakes can be made, but be careful! Because sometimes a mistake might later be considered deliberate, if it was self-serving. Deliberately lying under oath is a very bad idea! Sometimes people think, “How could they ever prove I was lying?” And then comes the surprise! The video surveillance tapes! … etc.

The third stage is that, then, the evidence is presented to a jury, the lawyers (or parties if representing themselves) make their arguments, all in a courtroom where order and decorum are maintained. Then the jury decides. As to motions, the mover presents the motion, the affected party presents an opposition, if they oppose (otherwise it will generally be granted if it is reasonable), the original party may rebut, and then the judge reviews this and decides. It is a careful, deliberative process, established over centuries. Most people never learn much about it and many simply mistrust lawyers.

They and scientists (and some other academics and philosophers) are the most highly trained thinkers we have. Notice that the judge, in the Orders, shows that she understands the respective cases. She is not “supporting” them, and a good consensus facilitator might do the same, show and understanding of all sides, so that discussion can become more focused and likely more productive.

Mary Yugo shows a total lack of understanding of what is going on,

Eric Walker repeated what he’d said before, in response to Shane D.

Bob wrote:

Well, I wish Abd was here! 🙂

Shazaam! I’m here! Where are you? By the way, to repeat, I am not a lawyer. I just know some, and have studied some law, and read a book about common law years ago, and used to read Supreme Court decisions for fun, until Bush v Gore soured me on that a bit. Really! It was like watching the best thinking in the nation fall into a toilet, and they knew it and didn’t care. We are the Supreme Court Majority! Get Over It!

My understanding is in partial agreement with Eric Walker. That this point is not meant to provide or present all evidence. However, the judge can review the case at this point and dismiss it if it found lacking of reasonable evidence. Notice that IH provided a certain amount (probably not all) evidence in their answer, so the judge could make a determination. Not just from the legal argument side, but the factual side as well. Rossi or the Third Party answer provides NO evidence of any kind. Only legal posturing.

Context has been lost. This is an MTD from counter-plaintiffs. These are difficult at best and some lawyers say to avoid them, because they can cause the plaintiff to strengthen their case. A plaintiff may amend, after all. Legally, they may simply deny the claims. A defense is never dismissed at this stage, only a complaint. Summary judgment is possible later, after there has been the Answer, which establishes what points are in controversy, and then Discovery, which is the pre-trial meat and potatoes. We won’t see discovery, except snippets that get revealed when the parties disagree and create a hearing before the Magistrate. However, at some point, the attorneys will have what is intended to be a complete picture of the arguments and evidence for the other side, and either side may move for summary judgment, as I understand it. The basis for that would have to be clear with no factual dispute involved; at this point, however, unlike with an MTD, a mere claim that, say, there was some conversation, won’t be enough. In some cases, such as promised actions more than a year in the future, the promise must be in writing or it cannot be enforced, that’s the Statute of Frauds.

If there is relevant factual dispute, trial will be necessary, because fact, in the presence of controversy, must be decided by a jury, if it is a jury trial, which was requested by Rossi. However, a judge may, for purposes of Summary Judgment, decide legal implications of asserted facts. Look at the first Order dismissing four of eight Rossi counts, linked above. The judge looked at the claims and decided that even if they were true, there was no patent infringment alleged. Saying that “I own the IP” is not patent infringement, which doesn’t prevent one from saying anything. Filing a patent, even if wrongful in some way, is not patent infringement. Etc.

That may be enough. but I doubt it. Again, not a lawyer, but I think it is a progressive activity. 1st filings are made with just “accusations”, probably very little evidence. Then answers are given repudiating the allegations and some evidence is normally provided, other than “we deny”. Motions to dismiss are the 3rd step and more evidence has to be given to justify the dismissal. This can be legal argument or evidence. So far we have seen both legal and evidence from the IH camp while the Rossi camp has provided no evidence that I have seen.

A basic answer accepts claims or denies them. It does not need to explain or prove. It may present evidence, as IH did, on many points, but on other points they simply made assertions. The court will take these as factually true for purposes of considering an MTD. So the defendants here will argue from the point of view of the allegations being true, and sometimes they will add “arguendo” or language like that to indicate clearly that they are not accepting a claim. This is not an Answer. If they can get the claims against them dismissed, they will be home free and won’t have to Answer. You have the order backwards.

1. Complaint filed and defendants served.

2. Defendants appear or don’t. If served and no appearance, default judgment is possible.

3. Defendants file a Motion to Dismiss, which is optional. Until it is decided, the time to Answer is tolled, so a Motion to Dismiss, even if not successful, can buy time, it will take a couple of weeks to present the arguments, and maybe two or three weeks for the Judge to decide, and then they will have 14 days more — and can ask for more time. (If the MTD succeeds, they are home free, though if it was dismissal without prejudice, the plaintiff could file a new complaint, perhaps better established. ) By the way, notice that Johnson and Fabiani waived service, which gave them extra time to respond. IH et al did the same, back in the day.

4. Defendants Answer. In the answer the allegations in the complaint receive a response. The basic responses are “denied,” “admitted,” or sometimes “have no information and are therefore denied.” If an allegation is not denied, as in left out, it will be accepted as true by the court, which will also accept as true whatever is admitted.

If Rossi has evidence for his claims, beyond what he asserted in the Complaint and Exhibits, he hasn’t put it in the pleadings. He is not required to do so. IH does it, which makes their case look a whole lot better. From this, we can think that he has no evidence, but perhaps Rossi doesn’t care what we think. We cannot conclude that he has no evidence; but the IH evidence looks quite strong to this observer. If Rossi has a Wabbit, he’s keeping it in his hat. If he doesn’t disclose it in discovery, though, he will likely face a Motion for Summary Judgment, particularly on his own Complaint. He does not need to disclose it in public at this time. The trial, though, will be public. I’m thinking of looking for funding to attend. That would be fun! I could take my daughter to Florida! Only problem: she is in High School now and hates to miss any. Imagine that! A teenager who hates to miss school! What is this world coming to? So maybe I’ll go on my own. She’s able to take care of herself and has friends she could stay with to boot!

The third party asked for dismissal of a suit brought on by IH. IH provided some evidence as to their fraud case. The answer to that suit was all legal wrangling where simple evidence provided could have nailed the dismissal. I.E. IH stated that JMP was a fraudulent company. If they responded “here is documents showing production or connection with a parent company” that would clearly dismiss the fraud charge. They did nothing to provide the judge to dismiss the charge other than “we deny”. My personal opinion is that they had no evidence.

My opinion only. :huh:

Bob, you seem to have confused the Rossi Answer with the 3rd party defendants’ Motion to Dismiss. These are at different stages. A defendant cannot introduce any evidence in a Motion to Dismiss, it must be based entirely on the Complaint as to fact. It can possibly argue against alleged fact that is actually conclusory. In ordinary thinking, we might consider “he cheated me” as a fact. It is not, ever, a fact, it’s a conclusion and a rather complex one. “He wrote a bad check” would be a fact, perhaps. I.e, the bank refused to honor the check, and they either did that or they did not, and that all is possible to establish beyond any reasonable doubt, ordinarily. “They said they represented Johnson Matthey” is an alleged fact, they either said that or they did not. But “they were deceptive” is more conclusory. “Fraud” is a conclusion, but then, such a conclusion must be based on facts. What facts? What was said? etc.

You can see this in the legal arguments. The 3rd party defendants are claiming that the facts alleged are too vague. The court will almost certainly not agree, and you can see this in the court’s dismissal of the Rossi MTD. They 3rd party MTD was written before that dismissal, and uses some very similar arguments. I will be looking to see if it has been strengthened or if, as would be more likely if they are trying to keep legal costs down, it is the same. If it is mostly for buying time, it really doesn’t matter, as long as the arguments are not so preposterous that the judge is tempted to sanction the attorneys. Poor arguments probably don’t help the judge’s sympathy for a counsel who presents them, though. Judges will attempt to avoid concluding a case is weak just because an attorney is raw or inexperienced, but they are human, like everyone else in the room.

Bob wrote:

[…] It is important to see that the Third Party did not deny!
If they did and it was proven that they knew about fraud, they might be in trouble with filing false statements! Rossi is already in knee deep, but they
are not. So they argued only from the legal point which has no ramifications. I find it very interesting that they did not present any claim that
the IH claims were false! Protecting their posterior? ^^

IH Fanboy wrote:

It is important to understand that document 90 is not a third party answer–it is a third party motion to dismiss. This is not the time or place for the third party defendants to admit or deny allegations.

I agree this was a motion to dismiss.
That means it IS time to provide evidence so the judge can “judge”! A motion to dismiss will only succeed if the defendant gives the judge enough evidence that the suit is either legally invalid (legal argument citing other precedents) or factual based upon evidence. This motion contained only “it does not matter” which will not win the motion at all and some legal argument as to what constitutes fraud. They could have easily had some dismissals by providing small but clear evidence such as JM Products was a “real” company. Or that Bass actually DID some work.
Nothing was presented and this motion will almost certainly fail. (In my admittedly uneducated in law opinion)

IHFB was, of course, correct. While sometimes allegations will be denied in an MTD, it’s not the norm. Planet Rossi raked IH over the coals for not rebutting Rossi claims in their MTD, but presenting purely legal arguments. The fact is that IH saved themselves — and Rossi — a fair chunk of change by getting four of the eight Rossi counts dismissed ab initio. Those were exceedingly weak claims, but they would have taken up time to cover. Here, the 3PDs are giving it a shot.

Evidence may not be provided in an MTD. If evidence is needed, an MTD is not appropriate! Evidence can be presented in an Answer, but an Answer can be much like Rossi’s Answer, relatively evidence free, he could legally just say “the allegations in paragraph … are denied.” Whether that is optimal or not is another matter. The court more or less expects attorneys to admit what is not controversial, because it simplifies the case, reducing unnecessary conflict, and the number of trees to be cut, and courtroom time.

Malcolm Lear provided a link to a reference on Motions to Dismiss.

Very nice. I recommend it.

Hermes wrote:

“Lastly, the purported hiring of a fake engineer and restriction of access to JMP’s facility and operation
are also not deceptive or unfair because pursuant to the Term Sheet, JMP, Johnson,
and Bass did not have a business relationship with Counter-Plaintiffs for anything other than the
rental of the Plant (in fact, pursuant to the Term Sheet, JMP, Johnson, and Bass were not even
allowed access to the Plant) and access to JMP’s facility or operation was never promised or required.” So the defense against fraud is that any amount of deception is permissible so long as there is no contractual violation. I don’t think that will stand up in Court! What is interesting here is that there is no attempt to deny that JMP had no use for the energy supplied and consequently they will need to explain why they paid for it if not as part of a conspiracy to defraud.

They are making a narrow legal argument that will probably fail. The actions were not fraud in themselves. They become fraud as part of a plan to deceive and induce IH to take actions to their detriment. I’d say that this is what an attorney might write searching for something to say to deflect a complaint. The Motion is correct in asserting that these actions were not a violation of the Terms Sheet. I think the attorney who wrote that may have been a bit confused on the facts. In fact, seems totally confused. It’s hard to find good help.

Eric Walker again made a simple and clear statement about the content of a Motion to Dismiss.

LENR Calender wrote a post belaboring the Planet Rossi trope that this is all about avoiding paying $89 million.

What does this have to do with the 3rd Party Motion to Dismiss?

Greg Parsons wrote:

Is it known already that Sifferkoll is a shareholder in Hydrofusion?

What does this have to do with the 3rd Party Motion to Dismiss?

No, it is not known. There is a list of shareholders included in a November, 2015 filing. it does not include Sifferkoll (his real name is known, it is not concealed). He has a friend, he wrote a book with her, who is a shareholder, with an apparent investment of 45 GBP. This is de minimus. However, Siffer has also acknowledged trading in futures in a way that would bring him profit if Rossi technology becomes available. And that this is brought up on lenr-forum, by a user with only one post, as if at all relevant, is downright weird. Sifferkoll has been silent, AFAIK, since then end of September.

However, there is a comment there that Sifferkoll admitted being a shareholder. No link. This is now knowledge is created on internet forums: out of thin air. It’s amazing, a miracle! Maybe he did. Maybe he bought shares recently. But I don’t think so. Hydro fusion is, from their last financial statement, insolvent, but expecting that major shareholders will put in more money.

Wyttenbach wrote a post which was so off-the-wall that … words fail.

More posts followed, completely off-topic. Wait. the topic is Rossi v. Darden developments. So anything anyone says about Rossi or Darden could be a “development.” Now I understand, it is all one topic and my mind is mush, one big bowl of mush. That is what LF administration wanted, to mush it all together so it would not get in the way of discussing Important Stuff like the emdrive or the new thermocouples Looking for Heat is offering.

Then THHuxley wrote:

It seems that this legal stuff is easy to misunderstand: though Wyttenbach above goes beyond the call of duty in doing so.

He went on to say more or less the same thing as I’ve been saying and some others. I’m not studying it in detail, I’m going to bed… I may revisit this tomorrow.

To be continued in (2)

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